Volume 18 — New York Supplement

<p>Appeal from special term, New York county.</p> <p>Action by Charles Schendel and Michael Deutsch against Samuel Silver and-others to restrain infringement of a trade-mark. Judgment for plaintiffs. Defendant Silver appeals.</p>

Action by William Y. Mortimer and another, executors of Richard Mortimer, deceased, against the New York Elevated Railroad Company and another; also (separate case) against the Metropolitan Elevated Railway Company. From judgment for plaintiffs in both cases defendants appeal.

<p>Appeal from judgment on report of referee.</p> <p>Action in equity by Christina C. Whitney against Emily Whitney and others for a construction of the last will of Joshua Whitney, and to recover certain lands. Plaintiff had judgment on the report of a referee, and Emily Whitney, Mary W. Lawrence, and Jennie 0. Whitney appeal.</p> <p>The complaint alleged that on the 20th day of February, 1844, Joshua Whitney made his last will and testament, in due form of law, to pass real and personal estate; that he died at Binghamton, N. Y., on the 13th of April, 1845, leaving said last will and testament, without having revoked or altered the same; that said will was duly proved and admitted to probate pursuant to law on the 4th of April, 1855, as a will of real and personal property, and letters testamentary were duly granted to Thomas G. Waterman, Franklin Whitney, and Washington Whitney, who duly qualified as such executors and assumed the execution of the will; that all of said executors have since-died; that George Whitney, named in said will, died in the year 1863, and the defendants George Whitney, Rhoda Whitney, and Charles W. Keeler were entitled to whatever interest in the estate of the testator said George Whitney would have been entitled to as residuary devisee if living; that Franklin Whitney, named in said will, died before the commencement of this action, and the defendants Jane C. Haskins, Pamelia W. Rogers, Caroline W. Ronk, Fannie C. W. Smith, and the plaintiff were his children, and entitled to whatever interest in the estate of said testator Franklin Whitney would have been entitled to' as residuary devisee if living; that Washington Whitney, named in said will, died before the commencement of this action, and the defendants Franklin Whitney, Rufus P. Whitney, Henry J. Whitney, Frederick A. Whitney, and Frank H. Whitney were entitled to whatever interest in the estate said Washington Whitney would have been entitled to as residuary devisee if living; that Painelia W. Waterman, named as one of the four beneficiaries in the residuary clause of said will, died before the commencement of this action, and her heirs and next of kin on or about August 12, 1867, assigned and released their interest, right, and title in the estate of said testator to the other residuary devisees and legatees or to their representatives; that-Emily Whitney is the widow of Charles Whitney, who died on or about the 26th of April, 1885; that Washington Whitney, named as trustee in said will-of the Conklin farm, died on or about the 14th of March, 1875, and during his life-time did not convey any portion of-said farm; that the defendant» Mary Lawrence and Jennie Whitney were the children of Charles Whitney, and, with the defendant Emily Whitney, are in possession of the Conklin farm, and have been since the death of Charles Whitney, and are receiving the use, rents, and avails of the same; that upon the death of Charles Whitney the Conklin farm, not having been disposed of by Washington Whitney, passed to the representatives or successors in interest of the residuary devisees under said will; that the defendants named as representing or being-successors in interest to said George Whitney, deceased, are entitled to one-third of said farm; that the plaintiff and the defendants named as representing or being successors in interest to said Franklin Whitney, deceased, are entitled to one-third of said farm; that the defendants named as representing or being successors in interest to Washington Whitney, deceased, are entitled to the remaining one-third interest in said farm; that the defendants Emily Whitney, Mary Lawrence, and Jennie Whitney, being in possession, claim to be entitled to and to own said farm. The plaintiff demanded judgment for a construction of said will, and that the farm be decreed to belong to the representatives or successors in interest of the residuary devisees named in said will, and that the defendants Emily Whitney, Mary Lawrence, and Jennie Whitney be perpetually enjoined from impeaching or otherwise making any claim in contravention of such judgment or decree. The defendants admitted many of the allegations of the complaint, but denied that upon the death of Charles Whitney the Conklin farm passed to the representatives oz-successors in interest of the residuary devisees under said will. They also alleged that the plaintiff had not the right to maintain this action; that the complaint did not state a cause of action; that by the terms of the will all the beneficial interest in said farm was vested in Charles Whitney, and upon his death descended to his heirs or personal representatives. They also set up the statute of limitations.</p> <p>The evidence disclosed that Joshua Whitney, then of the village of Binghamton, Broome county, N. Y., made his last will and testament, under his hand and seal, in due form, to pass real and personal estate, which was dated February 25, 1844, of which the following is a copy: “I, Joshua Whitney, of Chenango, Broome county, and state of New York, do make my last will and testament in the manner and form following, that is to say: I give, devise, and bequeath unto my wife, Julia, and Mary, my daughter, the balance now remaining of my homestead or farm, containing about one hundred and fifty acres, including the land and premises now occupied by Whitney and Doolittle; also the buildings and lots, parts of said farm, and as at presént, either under contract or lease, together with all my household furniture, farming tools, live-stock, farming produce, either harvested or growing at my decease, carriages, sleighs, and harnesses. The real property to be held by them as tenants in common until the death of my wife, when the real as well as personal property before described shall be equally divided between my daughter Mary and Franklin Whitney in fee; but inasmuch as my wife may prefer receiving, in lieu of the provisions aforesaid, a fixed annual sum of money, now it is my will that if my wife shall agree with my son Franklin to pay her, in lieu of the provisions aforesaid, a fixed annual sum of money, and shall fully enter into and complete such agreement, then it is my will that the said real and personal property shall forthwith be vested in my said son Franklin and daughter Mary, one-half to each in fee. The above devise and bequest to my wife is in lieu and in full for her right of dower in my estate. I give and devise to Washington ‘Whitney the Conklin farm of about one hundred and sixty acres, being the east part of lot No. 2, Bingham’s patent, S. S. Susquehanna river, occupied at present by Whitney and Conroy, the same to be held in trust; that is to say, after the expiration of the present lease to William Whitney, recently made, he, the said Washington, may either lease the same, or, if he should think best, may sell or dispose of it, and to pay over to my son Charles the rent, interest, or avails of said farm, in such sums as he, the said Washington, may deem most prudent, to meet the personal necessities of the said Charles, and to guard against his improvidence. It is, however, my will that if Charles should return home, and become steady, and wish to occupy said farm, the said Washington may, if he thinks best, convey the same to the said Charles. Having heretofore advanced to my son Virgil Whitney, in lands, moneys, etc., what I consider to be his just share in my estate, I therefore do not make any devise or bequest to him in this, my last will and testament. Having also heretofore advanced to my son Vincent Whitney, in lands, what I consider to be his just share of my estate, I therefore do not make any devise or bequest to him in this, my last will and testament. Having also heretofore advanced to my son Joshua Whitney, in lands, money, etc., what I consider to be his just share of my estate, I therefore do not make any devise or be- , quest to him in this, my last will and testament. I give and bequeath to the heirs of William Whitney, deceased, all advances made him in his life-time, and also two thousand acres of land on St. John’s river, Florida, formerly owned by said William. I hereby appoint Thomas G. Waterman, Franklin Whitney, and Washington Whitney my executors of this, my last will and testament. I give, devise, and bequeath unto my said executors, the survivor or survivors of them, and to their heirs and assigns, all the residue of my property, real, personal, and mixed, wheresoever situated, in trust, and for .the uses and purposes hereinafter expressed; that is to say, in trust that they, the said executors, the survivor or survivors of them, shall, as soon as may be after my decease, collect, sue for, and recover the money or moneys due or owing, or which shall thereafter become due, by reason of any bonds, debts, .and demands; and to sell and dispose of all my real estate, wheresoever situated, and every part and parcel thereof, and convert the same, as soon as-conveniently may be, into ready money, for the uses and purposes hereinafter mentioned; and on such sale or sales to make and execute to the purchaser or purchasers all necessary assignment or assignments, writings or deeds, to the same purchaser or purchasers, and to their several heirs or assigns, as may be proper and necessary, for the purpose of giving to them, or any of them, the legal and equitable right and claim to the same, and every part thereof. And I do further direct that when all the above-recited property shall be sold, disposed of, and converted into ready money, in the manner-above directed or otherwise, which may or shall remain after the payment of my just debts and necessary expenses, shall be divided in just and equal proportions, share and share alike, between the following of my children, to-wit: Unto Pamelia Waterman, George Whitney, Washington Whitney, and Franklin Whitney, after deducting from the share or proportion of each the sums which they have respectively received,of me for their advancement in the world, to-wit: From the share of Pamelia Waterman, seven thousand dollars, for farm-house in village, furniture hitherto.gi yen, and the one-fourth part of the spring property; from the share of George Whitney, the sum of three thousand five hundred dollars, for farm on which he now lives; from the share of Washington Whitney, the sum of four thousand dollars, for the farm where E. Brown now lives, and goods had of J. Whitney & Son; from the share of Franklin Whitney, the sum of five thousand dollars, for goods and village property, also fifty acres of land of lot No. 7 and part of Cook’s bond. I do hereby authorize the said executors, if they should think best, to divide among the said heirs, in just and equal proportions, as heretofore mentioned, all and singular the real and personal property so devised and bequeathed to the said executors in trust, after paying, as before mentioned, all my just debts and necessary expenses. I, Joshua Whitney, do hereby revoke all wills by me before at any time made. In witness whereof I have hereunto set my hand and seal this 26th day of February, one thousand eight hundred and forty-four. Joshua Whitney. [Seal.]”</p> <p>The testator died on the 13th of April, 1845. His will was duly admitted to probate, and letters testamentary duly granted to the executors named therein, who qualified as such, and entered upon the duties of their trust. All of the executors named in said will died before the commencement of this action. The testator left him surviving Charles Whitney, a son, who is mentioned in the will, and who was at the death of the testator 30 years of age, unmarried, of unsteady habits, away from home, and occasionally drank intoxicating liquors to excess. In 1851, Charles married the defendant Emily Whitney. Charles Whitney died intestate on the 26th of April, 1885, leaving the defendant Emily Whitney his widow, the defendants Mary Lawrence and Jane 0. Whitney, who are his only heirs at law and next of kin, both of whom are over the age of 21 years. In 1854 Charles Whitney returned home, and wished to occupy the Conklin farm, and, with the consent of Washington Whitney, the trustee named, moved upon the farm with his family, and resided there until the year 1870 or 1871, when the house was burned, and he moved elsewhere. From 1854 to 1885, the time of his death, he controlled the farm, and received the income and rents therefrom. Since 1879, and during her father’s life-time, Mary Lawrence contributed to the support of her father and his family an amount which nearly equaled the value of the farm in question, and 'with the improvements made by her exceeded its value. Washington Whitney, the trustee named in said will, died about the 14th of March, 1875, and did not during his life-time convey the Conklin farm. The 18th of March, 1875, Stephen C. Millard was duly appointed trustee in the place of Washington Whitney, deceased. Millard never conveyed this farm. The funeral expenses of Charles Whitney, amounting to $125, remain unpaid. The appellants were in possession of the farm, and have been since the death of Charles Whitney. The farm consists of about 160 acres, and is worth about $4,000.</p> <p>Most of the foregoing facts were found by the referee, and as conclusions of law he held: “First. That the said Conklin farm is vested in and belongs to the representatives or successors in interest of said residuary devisees, namely: To each of the defendants George Whitney, Rhoda Whitney, and Charles W. ICeeler, one-ninth thereof; to each of the defendants Jane C. Has-kins, Pamela W. Rogers, Caroline W. Ronk, Fannie C. W. Smith, and the plaintiff, Christina C. Whitney, one-fifteenth thereof; to each of the defendants Franklin Whitney, Rufus F. Whitney, and Henry J. Whitney, one-twelfth thereof; to the defendant Fred. A. Whitney, one thirty-sixth thereof; and to the defendant Frank H. Whitney, one-eighteenth thereof. Second. That the funeral expenses of Charles Whitney, deceased, amounting to about the sum of $125, with interest thereon from the 26th day of April, 1885, are a lien and charge upon said Conklin farm, and should be paid out of the avails thereof. Third. That the plaintiff is entitled to judgment and decree perpetually enjoining and restraining the defendants Emily Whitney, Mary Lawrence, and Jennie Whitney from impeaching or otherwise making any claim in contravention of such judgment and decree, or from making any claim to said Conklin farm or premises, or the rents, issues, and profits therefrom. Fourth. That the plaintiff is entitled to a judgment for the appointment of a receiver of said Conklin farm or premises, its issues, rents, and profits, and to take possession thereof, and deliver the same to the plaintiff and the defendants named in the first conclusion of law herein, together with her costs and disbursements of this action to be taxed by the clerk of Broome county, 5f. Y., and paid out of said Conklin farm or the avails thereof, but without costs against the defendants Emily Whitney, Mary Lawrence, and Jennie Whitney, and judgment is hereby ordered accordingly.”</p> <p>The appellants requested the referee to find: “(1) That had the value of said farm, and the rents, issues, profits, and avails thereof, been paid over to said Charles Whitney after the death of said Joshua Whitney, in such sums as to meet the personal necessities of said Charles, the whole value of said farm would have been required and paid over to said Charles before his death. • (2) That upon the death of Charles Whitney all beneficial interest in said farm passed to the defendants Mary W. Lawrence, Jane 0. Whitney, and Emily Whitney. (3) That upon the death of Charles Whitney all of the beneficial interest in said farm passed to the defendants Mary W. Lawrence and Jane O. Whitney, subject to whatever rights therein the defendant Emily Whitney acquired therein upon the death of Charles Whitney, as the widow of said Charles. (4) That the said farm did not pass, and has not passed, under the residuary clause in said will. (5) That no interest in said farm passed under the residuary clause in said will. (6) That the said residuary clause in said will is void as a trust, and no title to real estate passed under the residuary clause in said will. (7) That the plaintiff is not entitled to maintain an action for the construction of the will in question. (8) That the twenty years’ statute of limitations is a bar to the maintenance of this action by the plaintiff. (9) That the ten years’ statute of limitations is a bar to the maintenance of this action by the plaintiff. (10) That the statute of limitations is a bar to the maintenance of this action by the plaintiff. (11) That by adverse possession the title of the defendants in said farm has become absolute. (12) As a question of loches, the court should refuse to entertain this action.”.</p> <p>The referee refused to find as thus requested, and to such refusal the appellants duly excepted. They also excepted to the conclusions of law made and filed by said referee, and to each of such conclusions. There is nothing in the appeal-book or judgment roll to show that the summons in this action was served upon any of the defendants except the appellants. On the trial, however, all the defendants, except the appellants, appeared by George Whitney as their attorney, and he also appeared as attorney for them as respondents upon this appeal.</p>

<p>Application of Isaac B. Newcomb and others to set aside an election of directors of the Allegheny & Kinzua Railroad Company.</p>

<p>1. Insurance—Action on Policy—Jurisdiction.</p> <p>A Boston insurance company, doing business in the state of New York by permission of the state, on condition that it shall subject itself to the laws of the state, and that process served on it in the state shall be binding upon it, cannot, in an action on its policy issued in New York, brought in New York by a resident of New Jersey, set up the defense that the contract was executed and delivered at the home office in Boston, and that, therefore, the New York courts were without jurisdiction of the case.</p> <p>2. Same—Proof of Death—Physician’s Certificate.</p> <p>The obstinate and unjust refusal of a physician to furnish a certificate of the cause of the death of the insured, so that those interested are thereby prevented from complying with a condition of the policy requiring all claims against the company to be asserted within one year after death of the assured, cannot deprive them of the right to enforce the policy.</p>

Indictment against William P. Cannon for unlawfully having in his possession stamped and registered beer bottles. From a conviction defendant appeals.

<p>Action by William H. Kimball, executor, against Frederic Chappel and others, to construe the will of Pliny Wright, deceased.</p>

<p>Action, by George W. Adams and another, executors, etc., against Frances A. Berger and others for the construction of a will.</p>

Application by Charles Putzel for an order to compel John Simonson, Bobert E. Babb, and Sigismond Berendsohn, inspectors of election, at an annual meeting of the stockholders of the United States Crematory Company, to hold a new election. Application denied. For former reports, see 16 H. Y. Supp. 118, and 17 H. Y. Supp. 595, mem.

Action by Eugene C. Denton against the Ontario County national Bank and others to foreclose a mortgage! From a judgment entered on the decision at special term and on the report of a referee denying him the right to foreclose, but granting the privilege to redeem on certain terms, plaintiff appeals. Reversed. The opinion of Adams, J., rendered on the trial of this ease at special term, and referred to by Mr. Justice Macomber, is as follows:

Action by William Forrester, Siegfried Berger, and Oscar Friedlander, as judgment creditors of Samuel and Joseph Galiinger, against Bernard Strauss and others, to set aside, as in fraud of plaintiff, certain judgments confessed by the G-allingers in favor of defendants Strauss, Trier, and Ehrlich, and the executions issued thereon. Judgment for plaintiffs.

Separate actions by Ann L. Underhill and others against the Manhattan Bail way Company and another for injunction and damages. Motion by defendants to submit the issues is to fee and past damages to a jury.

Action by Martin Dunlap against William Boss, Sr., and William Boss, Jr. From a judgment for plaintiff entered, on a verdict, and from an order denying a motion for a new trial, defendants appeal.

Action by Abraham Steinam and others against Moses Strauss and others-to vacate a judgment entered against defendant Strauss and another, in favor-of Newman & Co., Hovember 20, 1889. From a judgment for defendants,, plaintiffs appeal.

<p>Appeal from special term. New York county.</p> <p>Action by the Hanover Fire Insurance Company against the Germania Fire Insurance Company and others. From an order awarding*an extra allowance, defendant the Germania Fire Insurance Company appeals.</p>

Application by Alice Stobo for peremptory mandamus to compel the Globe Eire Insurance Company and James S. Eadie, its president, to allow her to inspect its transfer book. From an order granting the writ, the company and its president, Eadie, appeal.

<p>Powers oe Attorney—Conveyance by Attorney—Want of Consideration.</p> <p>A conveyance of real estate without valuable consideration, by an attorney, under a power “ to grant, bargain, sell, exchange, demise, and let for such prices or rents, and on such terms, as to the attorney shall seem meet, ” is a valid exercise of the power so far as a person purchasing from another claiming under such conveyance is concerned.</p>

Action by Charles S. Holmes against William B. Davenport, as administrator of Arthur C. Gilman, deceased, and others, to recover the proceeds of four policies of insurance on the life of decedent, and two certificates of membership in a benefit association. The policies had been paid, and the proceeds were on ■deposit with a trust company, when the action was brought. The facts are stated by the referee as follows: “The material facts of the case may be briefly stated.

<p>Specific Performance—Release of Mortgaged Premises—Fraud.</p> <p>Where a mortgagor seeks specific performance of a provision in the mortgage, whereby certain parts of the mortgaged premises were to be released from time to time as payments were made, and the evidence shows that there was no absolute agreement for such a release, but that it was put into the mortgage in the absence of the mortgagees, after they had examined it with the help of counsel and expressed themselves as satisfied, it is incumbent on the mortgagor, upon a denial by the mortgagees of any knowledge of such provision, to show, at least, what was said by the mortgagees in the conversation which it was claimed resulted in their acceptance of the provision, and to show also that the provision itself was thoroughly understood.</p>

Action by Robert J. Dean and William Wills against Marshall S. Driggs to recover for damages sustained by reason of false representations in warehouse receipts. The receipts purported to be for Portland cement, and plaintiff became a bona fide holder of them for value. From a judgment entered on a verdict for plaintiffs, and from an order denying a motion for a new trial, defendant appeals.

Action by Henry Ludwig against Gustav Blum. Defendant died before service of an attachment on him, and his administratrix moved to vacate the •same, which motion was granted, and plaintiff appeals.

Action by Thomas Barrett against the Manhattan Railway Company and another “to restrain the operation of defendants’ roads, and to recover damages for injuries to property thereby occasioned. From a judgment for plaintiff, defendants appeal.

Action by Joseph L. Spofford and Paul N. Spofford individually, and as executors and trustees of Paul Spofford, deceased, against Pauline S. Pearsall and others. Plaintiff Joseph L. Spofford individually appeals from the judgment on the ground of its failure to contain certain provisions.

Action by William W. Averell against Arnzi L. Barber, the Barber Asphalt Paving Company, and others. From an order denying a motion to vacate a subpoena duces tecum the Barber Asphalt Paving Company appeals.

Action by William W. Averell against Amzi L. Barber and others. From-an order denying a motion for reargument and resettlement of a previous order entered in the action, defendants appeal.

<p>Proceedings by the mayor, aldermen, and commonalty of the city of New York to acquire lauds under Laws N. Y. 1884, c. 512. Mary A. Blizzard filed a petition therein, claiming a portion of moneys awarded by the commissioner of estimate to unknown persons. Petitioner moves to confirm the report of a referee in her favor.</p>

Action by Isaac K. Cohn and Bebecca Cohn, as executors, etc., of Jacob Cohn, against Louis Beckhardt, for moneys had and received. Judgment for plaintiffs. Defendant appeals.

<p>1. Setting Aside Deed of Remainder-Man—Fraud—Indemnity to Grantee.</p> <p>In an action to set aside, on the ground of fraud, a deed executed by plaintiff to defendant of a remainder limited after a life-estate, it appeared that plaintiff had just passed his twenty-first year, and that the price paid was between one-third and one-sixth of the value of the remainder, but there was no other evidence of fraud than the inadequacy of price. Held that, while plaintiff was entitled to relief, yet, as the proof of actual fraud was not clear and satisfactory, the deed would be allowed to stand as security for the sum paid by defendant.</p> <p>2. Same—Inadequacy of Price—Value of Life-Estate.</p> <p>Where, in an action to set aside the conveyance of a vested remainder, it appears that the trial court, in estimating the adequacy of the price, erroneously calculated the value of the life-estate, thereby making the purchase price appear fairly adequate, whereas in fact it was grossly inadequate, a new trial should be granted.</p>

Action by Nathaniel Sleeman against Lewis Hotchkiss and others to annul' a contract, and for other relief. Plaintiff appeals from a judgment dismissing; tile complaint, and from an order directing judgment and granting an extra, allowance.

<p>Appeal from special term, New York county.</p> <p>Action by Benjamin Z. Friedman against Herman Hirsch to set aside a transfer off real estate. Judgment for defendant. Plaintiff appeals.</p>

Proceeding by a majority of the trustees of the Schuyler Steam Tow-Boat ■Company, a corporation, for its dissolution. This is an application arising on the return of an order to show cause to restrain certain litigants from further prosecuting libels which have been filed in the United States district court for the eastern district of Yew York.

Three actions by Bernard Mahon against Anna M. Guilfoyle and Michael' J. King, individually and as administratrix and administrator of William. Guilfoyle, deceased, to vacate contractors’ liens. From judgments for plaintiff in each ease, defendants appeal.

<p>Opening Deeaui/t—Withdrawal op Answer—Unauthorized Act op Attorney.</p> <p>Where defendant’s attorney withdraws the answer, without the knowledge of defendant, because his retainer has not been paid, and judgment by default is thereupon entered, and plaintiff has not in the mean time lost any witness, defendant will be permitted to come in and defend the action; the judgment being allowed to stand as security. Denton v. Noyes, 6 Johns. 296, followed.1</p>

Action by Frederick A. Condit against Charles Sill. From a judgment of the general term of the city court affirming a judgment of the trial term, defendant appeals.

<p>Appeal from city court, general term.</p> <p>Action by Pauline Kahn against Joseph S. Lesser on a judgment of the superior court of the county of Milwaukee, state of Wisconsin, rendered against Joseph S. Lesser, Isaac Lewis, and Alexander Cable, as copartners. The record of the case in the Wisconsin court recites the appearance of the defendants by attorneys. Lesser alone resists this action; and he alleges that he was not served in the Wisconsin suit, and that the appearance of the attorneys therein for the defendants was officious and unauthorized. In addition to the recital in the record from Wisconsin, the evidence shows that, in fact, the defendants did purport to appear by attorney in the action. On the other hand, the defendant herein testified, without contradiction, that he did not retain the attorneys, and never authorized them to appear in his behalf. In the Wisconsin action, an attachment was levied on the property of the defendants. Pending the action, defendant was a resident of the state of New York.</p> <p>On the conclusion of the evidence, the defendant moved for a nonsuit, and a direction in his favor, on the ground that the court in Wisconsin did not acquire jurisdiction of his person, and that so the judgment of that court was ineffectual to bind him; and to a denial of the motion he duly excepted. With an entirely unexceptionable charge, the court below submitted to the jury whether the AViseonsin court acquired jurisdiction of the defendant, and upon that issue they found for the plaintiff. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal—Sufficiency of “Case”—Verdict without Evidence.</p> <p>A verdict unsupported- by any evidence involves error of law, and such error may be reviewed in the absence of a certificate that all the evidence appears in> the “case.”</p> <p>2. Account Stated—Want of Items.</p> <p>Plaintiff rendered monthly statements to defendant, which were received without objection, and finally presented defendant with a statement of balance due,, which defendant also received without objection, and repeatedly promised to pay. Held, that an “account stated” was shown by the evidence, though the last statement did not contain the items of the balance.</p> <p>8. Same—Unconditional Promise to Pay.</p> <p>It is not necessary that there be an unconditional promise to pay to sustain an. action on an account stated.</p> <p>16 N. Y. Supp. 205, affirmed.</p>

Action by John Paisley against Richard H. Casey to reform a contract whereby plaintiff agreed to pay defendant $5,213 for alterations and repairs on plaintiff’s premises. Judgment directing the amount to be reduced to $4,213, and that plaintiff recover $1,000 paid to defendant by mistake. Defendant appeals.

Action by James Mack against John dolieran and others to enforce a mechanic’s lien. From a judgment for plaintiff, defendants appeal.

Action by Conrad Boehm against Levi H. Mace and others to recover damage for personal injuries. From a judgment for plaintiff, defendants appeal.

• Action by Charles B. Ellison against Eunice M. Sessions to recover services as a physician rendered to defendant, a married woman, in the year 1877, and afterwards. The defense was a general denial, coverture, and the statute of limitations. The plaintiff recovered the full amount. The defendant moved for a new trial, which was denied, and the order denying such motion was affirmed by the general term. From a judgment for plaintiff, defendant appeals.

Action by Henry A. W. Wood against Edward Gordon to recover rent of an apartment in the premises 958 Ninth avenue for the month of October, 1890, upon an implied agreement of living for one year, arising from the tenant’s holding over, after the expiration of a previous term, under a written lease, from September 15, 1889, to September 1, 1890.

<p>1. Principal and Agent—Authority op Agent—Evidence.</p> <p>The wife of a bar-keeper brought an action against the proprietor to recover the-value of her services in washing towels for the bar for a period of three years, for-which she was employed by her husband. The bar-keeper was not authorized to-contract debts for the saloon, but it appeared that he had demanded money from, the owner to pay for Washing towels, after 18 months of service, and that the owner put him off, but raised no objection to the demand. Seld, that assent to the-future incurring of such expense was properly inferred by the jury from the-owner’s acts, and that a verdict for plaintiff’s services for the remaining 18 months-should not be disturbed.</p> <p>2. Husband and Wipe—Right to Wipe’s Services.</p> <p>The services in question having been rendered for the owner of the saloon, and not for the husband, there was no force in the objection that in this case the wife’s services belonged to the husband, and that she was not entitled to recover for them, nor in the objection that the contract was one between husband and wife, and therefore invalid.</p> <p>8. Violation op Sunday Laws—Evidence.</p> <p>Plaintiff’s statement that she washed the towels in lots sufficient to have five-clean every day, including Sunday, for use in the saloon, did not sufficiently show that she was aiding in the violation of the Sunday laws by defendant, so a* to deprive her of a right to recover.</p>

Action by Joseph Buehler and another against Lorenzo Reich to recover for services as electrical engineers. From a judgment for plaintiffs, de-fendant appeals.

Action by John W. Young against Sophia Young and another. From an> order denying plaintiff’s motion for a resettlement of the case, or restoration thereto of his requests and exceptions stricken therefrom, plaintiff appeals-

Action by Julia A. Stevens against Spencer Trask and another to recover from defendants the proceeds of five bonds, of $1,000 each, of the Delaware & Hudson Canal Company, payable July 1, 1884, which plaintiff claims she caused to be delivered, to the defendants for collection about said date.

Action by William H. Brandt against William Verdón, Lizzie M. Moses* and others to enforce mechanics’ liens. From a judgment for plaintiff, and for defendants Verdón and others, defendant Moses appeals.

<p>Appeal from special term.</p> <p>Action by William P. Hawes against Charles G. Dobbs and others. From a judgment for defendants, plaintiff appeals.</p>

Action by Number 121 Madison Avenue (a corporation) against John ©. •Osgood to recover rent of apartments in the house 121 Madison avenue, owned and managed by the plaintiff corporation, and claimed to be due for the months of May, June, July, and August, 1889, at $225 per month, and for the first half of the month of September, 1889, at the same rate, under a written lease of said apartments for the term of 18 months, commencing March 15, 1888, and ending September 15, 1889.

Action by Henry G-. Harris against S. Morris Pryor and Charles W. Drake-to recover money. From a judgment of the general term of the city court, affirming a judgment entered on a verdict for defendants, plaintiff appeals..

<p>1. Negligence—Evidence.</p> <p>A child 3% years old attempted to cross in front of an approaching street-car, and, in doing so, ran between the front and hind wheels of an express wagon, which was coming up behind the car, and was injured. Held, that the fact that the wagon was being driven too fast just before the accident was immaterial, there being enough to show that the accident would have happened just the same had the wagon been driven at a slower speed, and that the driver could not have avoided the accident by the exercise of ordinary care.</p> <p>2. Same—Imputed Negligence.</p> <p>Where a child of an age too tender to charge it with contributory negligence is run over by a wagon in the street, the negligence of its mother in sending it on the street unattended must be imputed to it.</p> <p>15 N. Y. Supp. 953, reversed.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Julia Smith against the 24ew York Elevated Eailroad Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Elevated Railways—Benefits from Station—Sufficiency of Evidence.</p> <p>Where the only evidence tending to support the contention of an elevated railway company that certain premises were benefited by the proximity of the company’s station was the unsupported opinion of experts, a referee properly refused' to find that the premises were benefited thereby.</p>

<p>Judgment—Res Adjudicata—Contract or Hiring—Installments.</p> <p>A contract to pay plaintiff S10 a week until returns are had from his inventions, no services being rendered by plaintiff to defendants, is not a contract for hiring ; so that a judgment for plaintiff, in an action to recover the first installment of $1(> under such contract, cannot operate as a bar to actions for further defaults on the-part of defendants.</p>

Motion against Luther Lasher, principal, and John A. Carnie, surety, that an order hereinbefore granted, remitting the forfeiture of a recognizance and vacating the judgment entered thereon, be vacated and set aside, and that the motion to remit such forfeiture and to vacate said judgment be denied.

<p>Appeal from eleventh district court.</p> <p>Action by Isaac Boehm against Edward Miller and another. From a judgement for plaintiff, defendant Miller appeals.</p>

<p>Appeal from eleventh district court.</p> <p>Action by V. Loewer’s Gambrinus Brewery Company against Conrad-W.. Bachman and others. From a judgment for plaintiff, defendant Bachman appeals.</p>

<p>Motion for Leave to Appeal—When Denied—Stare Decisis.</p> <p>Where, in a case originating in the district or city court of New York, judgment, on appeal to the court of common pleas, is rendered for plaintiff, expressly on the authority of a certain decision of the court of appeals, and no other ground is relied on by defendant, in a motion for leave to appeal to the court of appeals, than the hope or expectation of obtaining a modification of such decision, the motion will be denied.</p>

Action by Isaac C. Ogden, Jr., against Henry W. Pope on a promissory note. Judgment for plaintiff was entered on a verdict directed by the court, which was affirmed by the general term. Defendant appeals. The action was brought upon the following promissory note: “$370.14. Elizabeth, R. J., Sept. 14, 1890. “One month after date I-promise to pay to the order of myself three hundred and seventy 14-100 dollars at Eirst Rational Bank of Elizabeth, R. J. ‘‘Value received.

<p>1. Summary Proceedings—Assignment of Lease—Admissions in Pleadings.</p> <p>An allegation in a petition in summary proceedings for the recovery of leased premises, that certain persons hold over “as assignees or under-tenants, ” is not an admission by the landlord of the fact of an assignment of the lease.</p> <p>-2. .Same—Proof of Assignment.</p> <p>In such a case, where the landlord’s attitude does not assume the existence of an assignment, but, on the contrary, knowledge of* it is disclaimed, no presumption arises in defendant’s favor that proof of such assignment was withheld by the landlord’s act or fault.</p> <p>.8. Appeal—Presumptions.</p> <p>A party does not owe a duty to suggest defects in his adversary’s defense, so that, for an omission of such suggestion, the appellate court will, for the purposes of reversal, assume the existence of sufficient evidence to supply the defect.</p>

<p>Appeal from sixth district court.</p> <p>Action by the Lamson Consolidated Store-Service Company against George C. Hartung.. Judgment was entered in favor of defendant on a counterclaim. Plaintiff appeals.</p>

<p>Motion for leave to appeal to the court of appeals.</p>

Action by Margaret D. Brennan against Percival D. Griffiths for breach of promise of marriage. From an order of special term striking out part of his answer with costs of motion, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by David H. Carroll against Ann T. O’Shea. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Attachment—Affidavit—Denting Counter-Claims.</p> <p>In an action on several distinct claims it is not necessary that an affidavit for an attachment should allege that as to each item there is no counter-claim. Mwrra/u v. Nankin, ‘30 Hun, 39, disapproved.</p> <p>2. Same—Grounds—Threatening Preferential Assignment.</p> <p>Direct threats by a debtor to make an assignment preferring other creditors, in order to prevent a particular creditor from proceeding by attachment to secure his debt, constitute sufficient grounds for an attachment against such debtor.</p>

Action by Ephraim C. Gates and others against Arthur H. Dundon and others. From a judgment for defendants entered on the verdict of a jury, and from an order denying a motion for a new trial, plaintiffs appeal.

<p>Corporations—Inspection of Books—Recovery of Penalty—Pleading.</p> <p>In an action by a stockholder against the general manager of a corporation to recover a penalty for refusing to allow plaintiff an inspection of the company’s books, the complaint alleged that defendant “refused to exhibit the same, or to allow the same to be inspected by plaintiff or his representative. ” Held broad enough to admit of proof that a demand for inspection was made by plaintiff in person, rendering it unnecessary to decide whether the word “representative, ” used in Laws 1890, c. 564, § 29, describing the persons entitled to inspection,will include the stockholder’sagent.</p>

<p>Negotiable Instruments—Usury—Estoppel.</p> <p>To estop parties to a note, their representations in respect to its consideration and validity must he outside the face of the note. If such statements appear in the note, they will fall with the instrument because of the statute of usury, which would annul the instrument.</p> <p> (Syllabus by the Court.) </p>

Action by Ellwood S. Hand against the Society for Savings of Cleveland. From a judgment entered on a verdict for plaintiff, and from an order denying defendant’s motion to vacate an attachment, defendant appeals.

<p>Appeal from trial .term.</p> <p>Action by Ebenezer T. Baker against D. Edgar Codding and others. Erom a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from trial term.</p> <p>Action by John Claffy against Edward S. Farrow and others. From a judgment for plaintiff, defendant Farrow appeals.</p>

Action by Thomas P. Galligan against Matilda August. From an order denying a motion to vacate an order for her examination before trial, defendant appeals.

<p>Plastering Contract—Delay—Lost Rents.</p> <p>In an action on contract for plastering, testimony that defendant was delayed one month by failure of plaintiff to finish his work is not sufficient to support a counter-claim for lost rents, when there is nothing to show that there were any applications for rooms during the period for which the claim was made.</p>

<p>Judgment—Res Ad judicata.</p> <p>Where plaintiff has two independent accounts, each against defendant, and defendant makes a payment, which plaintiff credits on one account and sues on the other, and defendant proves that the credit should have been on the account in suit, and obtains a judgment accordingly, such judgment will not operate as a bar to a recovery by plaintiff on the other account.</p>

<p>Appeal from trial term.</p> <p>Action by William J. Logan and others against the Berkshire Apartment Association.. From a nonsuit plaintiffs appeal.</p>

<p>Attorney and Client—Order to Pay Over Money.</p> <p>Where an attorney has agreed to prosecute a claim for a given percentage “of the sum recovered, ” he may, when there is no dispute as to the facts, he required to pay over to his client the proper amount by an order of the court on whose judgment the money has been made.</p>

<p>Appeal from special term.</p> <p>Action by Julius E. Mosheim and others against Charles Pawn and others. From an order requiring a bill of particulars plaintiffs appeal.</p>

<p>Appeal from special term.</p> <p>Action by Samuel Pyne, administrator of Mary Pyne, deceased, against the National Steam-Ship Company, Limited, for value of goods lost. From an order retaxing costs, after a judgment for plaintiff, defendant appeals.</p>

<p>1. Corporation—Personal Liability op Director.</p> <p>Laws of New York providing, with respect to manufacturing corporations, that “ every director shall be personally liable for all debts incurred by the corporation, to an amount not exceeding §5,000, ” impose on the director an original contract liability, without regard to efforts to collect from the company.</p> <p>2. Same—Joint and Several Liability.</p> <p>In such case the liability is several as well as joint, and a single director or the entire board may be sued.</p> <p>8. Same—Equitable and Legal Relief.</p> <p>The creditor is not obliged, in such case, to go into equity to enforce his remedy, but may proceed at common law against the director.</p>

<p>New Trial—Newly-Discovered Evidence—Surprise.</p> <p>On a motion for a new trial on the ground of surprise and newly-discovered evidence, the evidence relied on was merely contradictory of witnesses on a point litigated at the trial, was satisfactorily rebutted by answering affidavit, and was not such as would probably change the result. Held, that the motion was properly denied.</p>

<p>Appeal from trial term.</p> <p>Action by Michael McGoldrick against Samuel Metcalf. From a judgment for plaintiff, defendant appeals. For former report, see 14 if. Y. Supp. 269.</p>

Action by S. Fleet Speir against the city of Brooklyn to recover damages resulting from a fire caused by an authorized display of fire-wurks. Judgment for plaintiff.

The lands of Evan John, deceased, were sold under a decree for the payment of his debts. The purchaser moves to be relieved from the sale.

<p>Witness—Privileged Communications—Attorney and Client—Waiver.</p> <p>Under Code Civil Proa, which provides (section 835) that an attorney shall not he allowed to disclose a communication made by his client to him in the course of his professional employment, unless (section 836) the privilege is “expressly waived ” by the client, a testator, by procuring the attorney who draws his will to be a subscribing witness thereof,"waives the privilege as to communications relative to a disinherited son, though decedent expressly requests that they be regarded as confidential.</p>

<p>1. Marine Insurance—Proofs of Loss—Waiver.</p> <p>Refusal by the company to pay an open policy of marine insurance on the ground! that the policy had been canceled, is an excuse for the non-presentment by the as- • sured of full proofs of loss.</p> <p>2. Same—Approval of Risks—Evidence.</p> <p>Such policy provided that it should cover such risks as might be approved and1 indorsed thereon. The practice of the company was to enter its approval of risks in a book furnished the assured, in a column headed “ Approved; ” such approval being evidenced by the initials “D. & P., Attys., ” set opposite a description "of the risk. Held, that repeated indorsements by the company of the letter “D. ” in the column “Approved ” sufficiently complied with the policy.</p> <p>3. Same—Cancellation of Policy—Subsequent Receipt of Premiums.</p> <p>The cargo of coal covered by such policy having been lost, the receipt by the company of premiums on other cargoes of coal subsequently, under the same policy, in the absence of evidence that the same were received under mistake, and of an offer to return the premiums, sufficiently showed that the policy had not been canceled.</p> <p>4. Same—Seaworthiness—Evidence.</p> <p>The testimony of the captain that the boat was seaworthy, and that of the owner that she had been thoroughly overhauled before the voyage, was sufficient prima facie evidence of her seaworthiness.</p> <p>5. Same—Salvage—Liability of Insurer—Counsel’s Pees.</p> <p>The boat was sunk, raised by salvors, the assured sued in admiralty for salvage, and the company notified to defend, which it neglected to do, and, judgment being recovered, the assured paid the same, including costs, disbursements, and counsel fees. Held, that the assured had the right to defend, and that the company was liable to reimburse him as well for counsel fees and other expenses incurred in the defense as for the judgment.</p> <p>6. Same—Sufficiency of Complaint—Proofs of Loss.</p> <p>The complaint alleged that by the policy any loss should be paid in 30 days after proof thereof, but contained no averment that such proof was furnished within the required time. Held, that the complaint should have been dismissed on that ground.</p>

At chambers. Action by Moses E. Bloom against the Pond’s Extract Company to recover $500 damages for breach of a contract whereby defendant employed plaintiff to repaint the signs of defendant along the line of the New York, New Haven & Hartford Railroad, between New York city and the city of Bridgeport, Conn. Plaintiff procured an order for the examination before trial of defendant, through its treasurer.

Separate actions by George W. Eggers and others against the Manhattan Railway Company and another for injunction and damages. Motion by defendant to submit the issues to a jury.

<p>Elevated Railroads—Damages to Property—Hearsay Evidence.</p> <p>Declarations made by tenants of an apartment house as to the entry of dirt and ' smoke from an elevated railroad into their rooms, because of which they were forced to keep their windows closed, but not assigned by them as reasons for giving up apartments in the house, testified to by the janitor, were mere hearsay, and improperly admitted in evidence.</p>

Action by Henry Iden against Isaac Sommers to recover for the conversion of certain gas fixtures which had been sold by plaintiff to one Wolff on the installment plan, title being reserved to plaintiff until payment of the price should be made. Wolff, without paying the price, mortgaged the property to-defendant, who sold it under foreclosure, which was the conversion alleged. A-verdict was directed for plaintiff, and defendant moves for a new trial on the judge’s minutes.

<p>Appeal from jury term.</p> <p>Action by John H. Gould against Frank E. Walbridge. From a judgment for plaintiff, defendant appeals.</p>

Action by Joseph W. Fiske against John Rogers and others. From a judgment for plaintiff and for defendants other than Rogers, the said Rogers appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by James Hunan against Andrew T. Doyle. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Trover and Conversion—Stolen Property.</p> <p>The owner of stolen property may maintain an action for conversion against a bona fide purchaser thereof.</p> <p>3. Same—Testimony of Thief—Corroboration.</p> <p>In such action, a verdict against defendant was chiefly founded on the testimony •of the thief. Held, that he was sufficiently corroborated by the fact that the box containing the property was empty, that he had an opportunity to steal the same, and that he was caught at defendant’s place of business attempting to sell a portion of the property.</p> <p>8. Same—Measure of Damages—Special Value of Property.</p> <p>Where the property in question consisted of stereotype plates of little or no marketable value, their special value to plaintiff, a book publisher, and not their value to defendant as old metal, was properly taken as the measure of his damages.</p>

<p>Appeal from ]iiry term.</p> <p>Action by Anthony McGarry against the New York & Harlem Railroad Company. From a judgment for plaintiff, defendant appeals.'</p>

Action by William Calmbacher, by Adolph Calmbacher, his guardian ad litem, against Louis E. Neuman and another. From an order directing payment of a judgment in favor of plaintiff into court he appeals.

Exceptions from jury term. Action by James A. Whitney against Charles L. Cammann, Harry B. Hollins, and Henry W. T. Mali. A verdict for plaintiff was directed at the trial, and defendants move for a new trial on exceptions ordered to be heard in the first instance at general term.

<p>Appeal from judgment on report of referee.</p> <p>Action by Julia Livingston against the Metropolitan Elevated Bail way Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Morgan L. Livingston and Sylvia Livingston against the Metropolitan Elevated Railway Company.and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from special term.</p> <p>Action by Mary Eliza Rowland against Charles Miller and the Taylor Company. A demurrer to the complaint was sustained, and plaintiff appeals.</p>

<p>Appeal from special term.</p> <p>Action by Alexandrina Jordan against the Metropolitan Elevated.Railway Company and another. From a judgment for plaintiff, defendants appeal.</p>

Action by John Murphy, by guardian ad litem, against the Manhattan Brass Company. From an order denying its motion that plaintiff file security for costs, defendant appeals.

<p>1. Usury—Renewal Note.</p> <p>The mere fact of the execution of a renewal note in a greater amount than the original does not necessarily show usury.</p> <p>2. Opening Judgment—Sufficiency of Affidavit.</p> <p>An affidavit that defendant had partly paid a note in action,- by giving another note for a part thereof, does not show a sufficient defense to entitle him to have a judgment on the note opened, and himself let in to defend.</p>

Separate actions by Sophia Frank, Barbara Fahrbach, Charles Ludovici, and Isaac Lubin, respectively, against the Metropolitan Elevated Railway Company and another. From a judgment for plaintiff in each case, defendants appeal.

<p>Appeal from judgment on report of referee.</p> <p>Action by Gretchen Seebach and others against the Metropolitan Elevated Bailroad Company and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Action by Elizabeth Steinmetz against the Metropolitan Elevated Railway-Company and another.</p>

<p>1. Costs—Assignment of Cause of Action—Liability of Assignor.</p> <p>Where a non-resident assigns the legal title to a claim to a resident, to avoid the necessity of giving security for costs, retaining the beneficial interest in himself, and in an action on the claim a judgment for costs is entered against the assignee, (plaintiff,) and an execution thereon is returned unsatisfied, the assignor may be charged with the costs, under Code Civil Proc. § 3247, which declares that “ where an action is brought in the name of another by a transferee of the cause of action, or by any other person who is beneficially interested therein, * * * the transferee or other person so interested is liable for costs in the like cases and to the same extent as if he was the plaintiff. ”</p> <p>2. Same—Inability to Collect from: Assignee.</p> <p>The return unsatisfied of the execution against the property of the assignee is sufficient evidence of inability to collect from him.</p>

<p>An action was brought in the name of the Metropolitan Addressing &. Mailing Company, as a corporation, against Goodenough & Woglom and another. Judgment was rendered in favor of defendants and against plaintiff" for costs. Defendants moved to charge Herbert D. Van Auken with the-costs, on the ground that he was beneficially interested in the cause of action, and that he wrongfully promoted the action; and, in support of the motion,, affidavits were filed, showing that the Metropolitan Addressing & Mailing Company was not a corporation, but merely .the style under which Van Aukem did business. There were also filed the contract authorizing plaintiff’s attorney to bring the suit, which was signed, “Herbert D. Van Auken, President Met. A. & M. Co.,” and a letter written by Van Auken to the attorney after the suit had been brought, asking information in regard to it, and referring to it as “my case.”</p>

Action by Michael Lennon against Mary F. C. Smith and others. Plaintiff moves to place the cause on the equity .calendar for trial.

<p>Motion by plaintiff (respondent) for reargument.</p>

Action by Charles F. Ackerson, as supervisor of the town of Somerset, against the board of supervisors of Niagara county and John J. Arnold as county treasurer, Judgment for plaintiff.

Action by Abbot L. Dow', trustee, against Margaret H. Dow and others, ■ originally brought to obtain a decree allowing an annual expenditure from the income of the trust-estate for defendants, the beneficiaries. A referee ivas directed to settle the accounts of plaintiff; and from a judgment overruling his report in certain respects, and removing plaintiff as trustee, plaintiff appeals.

Action by William Strait and others against the National Harrow Company and others. Held: or in which the Clipper Chilled Plow Co., or any officers or trustees of said corporation, may have or hold an interest, and in and to all patents now pending in the patent-office, and all that it may hereafter obtain or be interested in, legally capable of being assigned, relating to float spring tooth harrows, and also to acquire…

Action by Charles M. Tompkins and others against the First Hational Bank of Penn Yan and others to set aside a transfer of property made by Charles Hunter in payment of a debt.

<p>Appeal from circuit court, Rockland county.</p> <p>Action by Harriet A. Levasseur against the village of Haverstraw for personal injuries. From a judgment for defendant, plaintiff appeals.</p>

Action by Clara Ottinger against the New York Elevated Railroad Company and another, to enjoin defendants from maintaining and operating their elevated railway in front of plaintiff’s premises, No. 120 Pearl street, in the city of New York, and for damages sustained to the rental or usable value. The plaintiff’s property extends from Pearl street to Water street, and has a frontage and entrance on both streets.

Action by Benajah M. Martin against the Manhattan Railway Company and another to recover damages for injuries to property. From a judgment for plaintiff, defendants appeal.

Action by Sir Morell Mackenzie against the Soden Mineral Springs Company and the Eisner & Mendelson Company to enjoin defendants from using plaintiff’s name as an advertisement on certain medicine, and for damages by reason of such use of his name. Plaintiff moves to continue an ex parte injunction. The complaint was as follows: “The plaintiff above named complains of the defendants, and alleges: “First.

<p>1. Telephone Line—Construction in Highway—Rights of Abutters.</p> <p>The construction of a telephone line by the erection of poles and the placing of wires thereon, within the limits of a country highway, is an additional burden on. the fee, not contemplated in the original appropriation of the land for highway purposes, and the right so to construct such line must be by grant or condemnation, proceedings.</p> <p>3. Same—Acquiescence of Owners.</p> <p>The telephone company having constructed its line on the highway, without asking the consent of the adjoining owners, or seeking to acquire their rights by negotiation, on the assumption that it had the legal right to construct its line there, the: adjoining owners are not estopped on the ground of acquiescence from setting up. their rights in the premises.</p> <p>8. Champerty.</p> <p>The assignment of the causes of action of the several adjoining owners to one-person, and the subsequent bringing of one action for the determination of the issues involved, was not open to the objection of champerty.</p> <p>4. Conduct of Attorney—Officious Intermeddling.</p> <p>The fact that plaintiff's attorney had advised the adjoining owners of their rights-in the premises, and suggested an appropriate remedy for their disturbance, he not: having directly or indirectly purchased any of their claims for his client in violation of Code Civil Proc. §§ 73, 74, did not constitute officious intermeddling on his-part.</p>

Proceedings by the trustees of the Hew York & Brooklyn Bridge to acquire title to real property owned by the Third Methodist Episcopal Church, of the city of Brooklyn. Plaintiff took judgment condemning the property May 23, 1891. On July 24,1891, commissioners made their report, fixing the value of the property at $130,000, which report was confirmed October 24, 1891, by order on that day entered in the clerk’s office of Kings county.

Action by Hiram A. Douglas against the Phcenix Insurance Company of Brooklyn to recover the amount claimed to be due the plaintiff on a fire insurance policy issued by the defendant.

<p>Eminent Domain—Opening Award of Commissioners—Stipulations.</p> <p>A nominal award was made by commissioners, in a street-opening proceeding, to unknown owners. Afterwards an owner, who had not appeared before the commissioners, was by mistake allowed to come in and show that she was entitled to a substantial award, on condition that she should claim only the value of the land as it existed at the time of the original assessment, so that the burden of the subsequent increase in value of the lands would not be imposed on the assessed property owners because of her mistake, to which condition she assented. Seld, that she was thereby estopped from claiming interest on the award subsequently made to her.</p>

<p>Breach of Promise to Marry—Seduction—Evidence.</p> <p>In an action for breach of promise to marry, in which defendant expressly denied the promise, evidence of sexual intercourse between plaintiff and defendant, and the resulting motherhood of plaintiff, is competent on her behalf, though not alleged in the complaint.</p>

Action by Almon H. Mussen against the Ausable Granite Works and others. A demurrer to the complaint was sustained, and plaintiff appeals.

Case submitted on agreed statement. Action by the people of the state of New York against the Fitchburg Railroad Company. A judgment for plaintiff on a ease submitted under Code Civil Proc. § 1279, was reversed by the court of appeals, and defendant moves for an additional allowance of 5 per cent.

<p>Appeal from Albany county court.</p> <p>Action by Eugene S. Clark against Charles W. Lude. From an order granting defendant’s motion for a new trial, and from an order overruling a motion to amend the verdict, plaintiff appeals.</p>

Action by Isabella McCormick against the city of Amsterdam to recover damages for personal injuries caused by the defective condition of a street. From a judgment for plaintiff, defendant appeals.

Action by Tuffield I). Depan against Patrick Wallace to recover damages for an assault. The question put to defendant on cross-examination, referred to in the opinion, was, “How many rows have you had within five or six years?” From a judgment for defendant, plaintiff appeals.

Action by Theodore B. Van Derveer and another against William H. Wood-worth to recover possession of certain property levied upon by defendant. Defendant was an officer of the city of Amsterdam, and as such had seized the property in question under a warrant for the collection of a special assessment for a street grading.

<p>Appeal from Warren county court.</p> <p>Action by Samuel T. Guilford against Joseph B. Mills, sheriff, etc., to recover a stock of goods levied on under executions by defendant. From a judgment for plaintiff, defendant appeals.</p>

Action by the National Bank of Troy against Marshall W. Scriven and others • to declare void a second assignment executed by defendants, a firm, for the benefit of creditors. From a judgment for defendants, plaintiff appeals.

<p>Appeal from circuit court, St. Lawrence county.</p> <p>Action by George S. Wallace against the Central Vermont Bailroad Company. From a judgment for defendant, plaintiff appeals.</p>

Certiorari on the relation of John Clingan to review the action of Andrew S. Draper, state superintendent of public instruction, in removing relator from his office of school trustee.

<p>Appeal from judgment on report of referee.</p> <p>Action by Attiiio Pasquini against James L. Lowery, executor of Austin Gibbons, deceased. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Cumulative Insurance—Knowledge of Company—Waives.</p> <p>A life insurance company is chargeable with knowledge of the existence of a former policy issued by it to an applicant; therefore where defendant company issues a second policy, and accepts the premiums accruing thereunder, it cannot avail itself of a statement made by the insured in his second application, without fraudulent intent, that he is not already insured in defendant company.</p>

<p>Recorder op the City of Albany—Extraurban Jurisdiction.</p> <p>Laws 1849, c. 150, § 10, as amended in 1872, c. 284, providing that “the recorder ■of the city of Albany shall have power to perform all acts that may by law * * * ■be done and performed by a justice of the supreme court at chambers, including .proceedings supplemental to execution, ” confers no power on the recorder to grant ■an order in supplementary proceedings to be executed in any part of the state outside of the city of Albany.</p>

<p>Appeal from Saratoga county court.</p> <p>Action by Robert G. Waldron against Emma Walker. From an order made in proceedings supplementary to execution, defendant appeals.</p>

<p>1. Pleading—Amendment—Changing Nature of Action.</p> <p>Code Civil Froe. § 723, allowing the amendment of a pleading by the insertion of allegations material to the case, does not authorize such an amendment as will change the nature of the action from tort to one of contract.</p> <p>3. Same—Amendment after Trial.</p> <p>In an action to recover for personal injuries, defendant moved to dismiss on the ground that the action was barred by the statute of limitations, which motion was granted, whereupon plaintiff moved to amend the complaint by inserting allegations that, before the bar of the statute accrued, the claim was placed in the hands of an attorney for collection, and that defendant, in consideration of an agreement that no action should be brought, promised to pay defendant S500 on account of his injuries, but had never paid the same. Held, that plaintiff having elected to go to trial on his original pleading, and having been defeated, it was not in furtherance of justice to allow the amendment.</p>

<p>Appeal from special term, Montgomery county.</p> <p>Action by Stephen Sanford and others against John Claflin and others. From an order striking out certain allegations from the answer, defendants appeal.</p>

<p>Appeal from circuit court, Rensselaer county.</p> <p>Action by Amasa B. Moore against the Manufacturers’ National Bank of Troy and another. From a judgment for plaintiff, defendants appeal.</p>

Action by Annie Losee against the Watervliet Turnpike & Bailroad Company to recover damages for personal injuries. .From a judgment for plaintiff, defendant appeals.

<p>Appeal from Rensselaer county court.</p> <p>Action by Francis Riley and Peter Gaffney against George A. Lowry. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Ulster county court.</p> <p>Action by Richard Deyo against John Borley. From an order denying a motion to vacate proceedings supplementary to execution .defendant appeals.</p>

<p>1. Pleadings—Amendment before Referee.</p> <p>Under Code Civil Proc. § 1018, conferring on a referee the powers of the court as-to amendment of pleadings, an answer may be amended on motion before a referee, as to particulars within the discretionary power of amendment conferred on the court by section 723.</p> <p>2. Same—Admission in Original Pleadings.</p> <p>Where pleadings have been amended, admissions in the original pleadings maybe considered by the court without formally reading them in evidence.</p>

Application by the people of the state of New York on the relation of Erank Hasbrouck for a peremptory writ of mandamus to compel the board of canvassers of Dutchess county to recount the votes cast for county treasurer at the general election held in Dutchess county, November 3,1891.

<p>Appeal—Rehearinq—When Denied.</p> <p>Where the only question between the parties was whether plaintiff’s employment, by her husband, a bar-keeper in defendant’s employ, was authorized by defendant, and no unsettled question of law was involved in the case, and the decision was not in conflict with any case or statute, a motion for reargument or leave to appeal to the court of appeals will be denied.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by AI. Le F. Merriman against the Keystone Mutual Benefit Association. From a judgment for plaintiff, entered on the report of a referee, defendant appeals.</p>

<p>1. Jurisdiction of County Court—Equitable Action—Evidence.</p> <p>By an antenuptial agreement the prospective wife relinquished all of her contingent dower rights in the property of the husband, in consideration that her support should be made a charge and lien on his estate. After the marriage the husband conveyed his property to his children, taking from each a bond conditioned for his support and that of his widow after his death. Held, that an action by the widow on one of those bonds to enforce its provision in her favor was an action at law, and not an action in equity to enforce the antenuptial agreement, and that, therefore, the county court had jurisdiction.</p> <p>3. Same—Accounting.</p> <p>The fact that similar bonds of the other children were offered in evidence for the purpose of determining the quota which defendant was liable to contribute to plaintiff’s support did not constitute an accounting which would change the action to an equitable proceeding.</p>

Action by John S. Hulin against Herman B. Squires and another, executors •of Franklin W. Farnam, deceased, and others. ■ From a judgment for plains tiff, defendants appeal.

<p>Appeal from circuit court, St. Lawrence county.</p> <p>Action by Albert E. McGuire against the Ogdensburgh & Lake Champlain Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Action against Executor—Costs—Certificate of Pacts—Stipulation.</p> <p>Code Civil Proc. § 1836, provides that the facts on which costs are allowed against an executor refusing to refer a claim without action “must be certified by the judge or referee before whom the trial took place.” An action against an executor was tried before a referee, who found for plaintiff, and on a motion by plaintiff for costs against the executor the question whether the executor had refused to refer the claim was referred to a second referee, the parties stipulating that the motion for costs should not be founded on the certificate of the first referee. Held, that such stipulation dispensed with a certificate of facts by the trial referee, and that costs were properly awarded against the executor.</p>

Action by John Lindsay against L. S. Tansley. From a judgment of the county court affirming a judgment for plaintiff rendered by a justice of the peace, defendant appeals.

<p>1. Action on Firm Note—Individual Indebtedness—Pleading.</p> <p>In an action on a note purporting to have been executed by a firm, one defendant, under his general denial, may show that the note was executed by the other partner for an individual indebtedness to plaintiff.</p> <p>2. Same—Estoppel.</p> <p>The fact that defendant had at the trial obtained an adjournment in order to procure leave from the special term to amend his answer so as to set up such defense specially could not estop defendant from availing himself d'f that defense under the general denial.</p>

<p>Motion by William Steinway and others, composing the board of rapid' transit commissioners of Mew York city, for the appointment of three commissioners to determine whether a rapid transit railway shall be established-</p>

<p>Appeal from Erie county court.</p> <p>Action by Catherine S. Seifert against Bichará Caverly. Plaintiff appeals from an order of the county court which imposed terms and conditions on, which plaintiff’s default taken at the trial term was opened. So much of order as appealed from reversed.</p>

Action by Henry Weill against Charles J. Close, impleaded with another, on a promissory note. From a judgment entered on a verdict directed for plaintiff, defendant Close appeals.

<p>Appeal from Chautauqua county court.</p> <p>Action by Francis B. Brewer against Clarence Delafield for damages done 4o plaintiff’s gas-pipe and for the escape of gas. From a judgment of the county court, reversing a judgment for plaintiff recovered before a justice of the peace, plaintiff appeals. Judgment of county court reversed, and that of the justice affirmed. „</p>

<p>Eminent Domain—Compensation—Elements op Damage.</p> <p>The award of the commissioners appointed to appraise lands condemned for railroad purposes will not be set aside as excessive on the ground that witnesses for the land-owners were permitted to estimate the damages on the assumption that the lands at some future day might be divided into city lots and sold for greatly advanced prices, where the report of the commissioners shows that such testimony had no weight with them, in so far as it appeared to be speculative, and-no erroneous principle is shown to have been adopted by the commissioners in estimating damages.</p>

<p>Appeals from Justices ok the Peace—Title to Land—Dismissal.</p> <p>Code Civil Proc. § 3956, providing that if, in actions before justices of the peace, it appears “from the plaintiff’s own showing that the title to real property is in question, * * *• the justice must dismiss the complaint * * * and render judgment against plaintiff, ” does not apply where an appeal is taken in trespass from a justice to the county court, the record not showing that the title to the land was disputed in the proceedings before the justice, and it was error for the county court to dismiss the complaint on the ground that from plaintiff’s showing the title to the land was involved.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Theodore Kirsch, by guardian, and Michael J. Kirsch, individually and as administrator of Peter Kirsch, deceased, against Orange L. Tozier, the Buffalo Savings Bank, and others, to reinstate a mortgage and foreclose the same. From a judgment for plaintiff, Orange L. Tozier and the Buffalo Savings Bank appeal, with notice of the intention to bring up for review an order granting an additional allowance of costs.</p>

Action by Jacob Henning, as administrator de bonis non of Fredericka Henning, deceased, against Daniel W. Caldwell, as receiver of the New York, ■Chicago & St. Louis Railway Company, to recover damages for killing of Fredericka Henning. Judgment for plaintiff. Defendant moved at special term for a new trial. Denied. Defendant appeals.

<p>1. County Coubts—Jurisdiction—Nature of Action.</p> <p>A complaint alleged that plain tiff “let and rented to defendant, for the term of one year, the farm of plaintiff, together with the stock, tools, and implements then on said farm, and owned by plaintiff, in consideration of which letting and renting defendant agreed to pay over to plaintiff one-half of all the crops raised on the farm during said term, one-half of all the increase of the stock thereon, and one-half of the milk of the cows, or the proceeds thereof, and at the expiration of said term to' leave on said farm 10 acres of wheat sown;” that “defendant failed to pay over to-plaintiff one-half of the crops, of the increase of stock, and of the milk, or the proceeds thereof, and converted the same,, and proceeds thereof, to his own use, and has refused to pay over the same to plaintiff, or any portion thereof; ” and that “ defendant failed to sow, and leave on said farm sown, ten acres of wheat, as agreed. ” Held, that the complaint stated a cause of action, not in equity for an accounting, but at law for the recovery of rent, and that, therefore, the county court had jurisdiction of the subject-matter of the action. Taylor v. Bradley, 89 N. Y. 139, distinguished.</p> <p>2. Appeal—Refusal to Allow Amendment.</p> <p>The refusal of a court to allow an amendment, solely on the ground of want of power, is reviewable on appeal.</p>

<p>Appeal from special term, Erie county.</p> <p>Action by Clara Wertheimer against Louis Schuster, as president of the Arthur Avenue Land Company, to restore plaintiff to membership in said «company. From a judgment for plaintiff at special term, defendant appeals.</p>

<p>Appeal from special term, Monroe county.</p> <p>Action by Margaret Kearney, as administratrix o£ Patrick Kearney, deceased, against Charles E. Morris, as executor of George H. Thompson, deceased, and Henry M. Ellsworth, and John Luther, for an accounting of a copartnership, of which plaintiff’s intestate was alleged to have been a member. From a judgment dismissing the complaint, but not on the merits, plaintiff appeals,</p>

Action by Max Danziger against Max Silberthau and others for waste. 'The lease from plaintiff to defendants stipulated that the leased premises ¡were to be returned at the end of the term in as good order as when the lease was given, usual wear and tear excepted, but that glass was broken, railings ■destroyed, and plastering and plumbing injured and destroyed to the amount of $1,408.54. Verdict was rendered for plaintiff, and he now moves for a judgment for treble damages.

Action by Melanie Effray against Marie E. Masson, administratrix of Marie Ann Thuillier, deceased. From an order denying defendant’s motion to strike out costs from a judgment for plaintiff, defendant appeals.

<p>1. Appeal—Objections Waived—Insufficiency of Answer.</p> <p>The objection that defendant’s answer presented no defense to the action cannot be made on appeal, where plaintiff made no motion below for judgment on the pleadings, treated the answer as sufficient, recognized the necessity of proving her case, gave in her evidence, and without objection allowed defense to be made.</p> <p>2. Contradicting Witness—Collateral Inquiry—Particular Credit.</p> <p>On the trial of an action by one sister against another, administratrix of their deceased mother, to recover decedent’s board, a third sister, witness for plaintiff, was asked if stoe had riot advised plaintiff “to bring this suit, even if it was necessary to swallow up the whole estate in litigation, ” to which witness replied in the negative. Meld, that the evidence sought to be elicited by such question went to the particular credit of the witness in that action, evincing hostility to defendant, and not to her general reputation for veracity, and therefore that defendant was not bound by her answer, and that the court erred in excluding evidence offered by defendant to contradict the witness.</p>

Action by James E. Markham against William T. Washburn and Emma J. Richardson to recover for services rendered as broker in the sale of real estate. Erom a judgment of the general term of the city court affirming a judgment for plaintiff entered on the verdict of a jury, and an order denying a motion for a new trial, defendants appeal.

Accounting by Henry Aplington, as assignee for benefit of creditors of Oeorge M. D. Littell and Marion W. Littell. The assignee appeals from so much of an order made on the accounting as denied the allowance to him of disbursements for services of counsel in the proceeding.

Action by De Witt Mull and Gottlieb Frommer against Henry M. Jones, Walter M. Jackson, as assignee of Isaac P. Bowers, and Jacob J. Vreeland and other defendants to foreclose a mechanic’s lien. Defendants Jones and Jackson appeal from a judgment for plaintiff entered upon the report of a referee.

Action by Margaret A. Meislahn against Bichard Hanken, as administrator of George W. Butt, deceased, for services rendered to deceased. Plaintiff appeals from so much of the order of the special term of this court granting her motion to set aside the judgment and restore the cause to the calendar as requires her to pay all the costs of the action as a condition of granting the motion, and denies her motion unless such costs are paid.

Action for rent by Gerald B. Brown and another against Abram Wakeman. Plaintiffs appeal from a judgment of the general term of the city court affirming a judgment for defendant.

Action by George H. Engelage and George Liss against Warren Raymond •for goods sold and delivered. Defendant appeals from an order of the general term of the city court affirming'an order of that court denying a motion to vacate an order of arrest.

<p>Appeal from city court, general term.</p> <p>Action by Emanuel Manheimer against Solomon Stern, Moses Stern, and Bernard Pasternak for commissions on sales of merchandise. Defendants appeal from a judgment of the general term of the city court affirming a judgment for plaintiff entered upon the verdict of a jury, and an order denying a motion for a new trial.</p>

Proceeding by George W. Patterson for the probate of the will of John Patterson, deceased. Proponent moves to vacate an order of a judge of the court of common pleas, requiring proponent to produce for examination certain witnesses.

Action by Marena Snyder against William P. Brooks for money had and received by defendant to use of plaintiff, being amount of proceeds of sale of a cow belonging to plaintiff. Judgment was given for plaintiff, from which defendant appealed to the county court. Judgment reversed. Plaintiff now appeals.

<p>Appeal from court of sessions, Livingston county.</p> <p>. Nathan Colgrove was convicted of bastardy, and appeals from an order denying him a new trial.</p>

Action by the Manhattan Electric Light Company, Limited, against the Harlem Lighting Company and Levi L. Cans. From an order denying plaintiff’s motion to rescind an order punishing it and others for contempt, plaintiff and such others appeal.

Genesee county. Action Dy Mary Ann Noonan, administratrix, against theNew York, Lake Erie & Western Railroad Company. Erom an order of the special term directing plaintiff to file a case and exceptions plaintiff appeals.

Exceptions from circuit court, New York county. Action by Gerard Beekman and another, individually and as trustees of James W. Beekman, deceased, against Abraham Van Bolsen, upon covenants in a lease. Verdict for plaintiffs by direction of the court. Befendant’s exceptions ordered to be heard in first instance at general term.

Action by the American Water-Works Company of New Jersey against Clarence H. Yenner and another for an accounting. From an order granting a preliminary injunction defendants appeal.

Summary proceedings for the possession of land by Abbie H. Hoffman against John D. Hoffman. Defendant had judgment entered on a verdict of a jury, and plaintiff appeals.

Action by Emma McCabe and Joseph F. McCabe, her husband, against the city of Buffalo, to recover for personal injuries received by the wife by reason of a defective street. From a judgment for plaintiffs, defendant appeals.

Action by the Key West Building & Loan Association against the Bank of Key West to recover deposits. Henry L. Branch, receiver of the defendant, appeals from an order denying his motion to vacate an attachment against defendant, under which property was taken to which he claims title.

Action by George W. Allen, as general assignee of James A. Waddell, against the Bank of Key West, to recover deposits. Plaintiff appeals from an order vacating a warrant of attachment.

Action by Charles B. Gardner against the C. B. Keogh Manufacturing Company and others to set aside alleged fraudulent conveyances. The company appeals from an order overruling a demurrer to the complaint, and from an interlocutory judgment entered thereon.

<p>Appeal from special term, Hew York county.</p> <p>Action by Albro Akin against Alfred J. Luce for an injunction. Plaintiff appeals from an interlocutory judgment directing an accounting.</p>

Exceptions from circuit court, Hew York county. Action by Alberto H. Gaffer against William Ottman and others, executors •of Jacob Ottman, deceased. The complaint was dismissed, and plaintiff moves for a new trial on exceptions ordered to be heard in the first instance •at general term.

Action by Judson G-. Wells against Thomas B. Knox, as general assignee of Samuel A. Warren, for an accounting. Defendant appeals from an order of reference to take proof of the matters set forth in the pleadings and to state the assignee’s account.

Application by John Delahunty, as committee of the estate of Felicia Denison, a lunatic, to restrain the enforcement of a judgment rendered by the city court against such committee at suit of David Rosenbaum. Rosenbaum appeals from an order restraining tlje enforcement of such judgment, and from an order denying a motion by him for leave to sue such committee nunc pro tune.

Action by Anna B. White and Anna B. Haulenbeck against the Manhattan Railway Company and others to restrain defendants from maintaining or operating an elevated railroad in the street in front of plaintiff’s premises, and for past damages. Defendants appeal from a judgment for plaintiffs entered upon trial by the court without a jury. .

Certiorari, on the relation of Robert O’Rau, to review a decision of the-board of police commissioners of the city of New York, dismissing him from the police force.

Action by Dennis Sullivan against Clarence H. Venner and others to re-strain them from holding an irregular meeting of the board of directors of a ■corporation. Defendants appeal from an order granting an injunction.

<p>Appeal from special term, New York county.</p> <p>Action by William Hill against the mayor, aldermen, and commonalty of the city of New York to restrain the use of a pier as a dumping ground. Judgment for defendants. Plaintiff appeals.</p>

Proceeding by Eugene A. Rumsey, one of the executors of the last will of John A. Rumsey, deceased, against his co-executors, Samuel Waller and Andrew G. Mercer. From a decree of the surrogate directing a final settlement and distribution of the estate, Samuel Waller and Andrew G. Mercer, co-executors, and Anna Rumsey, Muriella R. Whitman, Ariana R. Micks, Lillias R. Sanford, and Elizabeth R. Mercer, legatees, and Rumsey & Co., Limited, creditors, appeal.

Ejectment by Louisa P. Chard and another, administrators with the will annexed of Bufus C. Palmer, deceased, against Horatio H. Holt and others. From a judgment for defendants, plaintiffs appeal.

Action by James N. Platt, trustee, against Andrew H. Mickle, Lizzie Mickle, and others, for the construction of a will. From a judgment for plaintiff, defendant Lizzie Mickle appeals.

Action by Joseph Oppenheimer against the Manhattan Railway Company. Plaintiff was arrested on a charge of disorderly conduct on board defendant’s cars in refusing to pay his fare. From a judgment dismissing the complaint, plaintiff appeals.

In the matter of the general assignment of Charles O.'Willis to Henry L. Schwartz for the benefit of creditors. From a decree confirming the report of a referee dismissing the claims of Edward W. Eames and Harriet E. Potter as creditors, Eames and Potter appeal.

Action by Jeannie T. Hard and another, as administrators of William M. Ashley, deceased, against Leurendus B. Ashley and Susan M. Ashley, impleaded with the executor of Isaac Ashley, deceased. From a judgment for plaintiffs entered on the report of a referee, and from an order allowing additional costs to plaintiffs, L. B. Ashley and S. M. Ashley appeal.

Action by Jane Lynch, administratrix, against the Mew York, Lake Erie & Western Railroad Company to recover damages for the death of Frank Lynch, deceased. From a judgment of nonsuit, plaintiff appeals.

Action of accounting by Chauncey St. John against Howard H. Coates and' another, executors of George H. Peck, deceased. From a judgment for plaintiff for $5,496.75, and from an order denying a motion for a new trial on the-judge’s minutes, made on the trial of special issues at circuit, defendants-appeal.

Proceeding for the probate of the alleged will of Francis Raynor, deceased. From an order admitting the same to probate, contestants appeal.

<p>Action to Vacate Judgment—Pleading.</p> <p>Plaintiff brought an action to vacate a judgment on a note given by him on dissolution of a partnership, alleging that defendant had violated certain provisions of the articles of dissolution, and disabled himself from performing the agreement on his part, but there was no allegation of performance on the part of plaintiff, and it appeared from the face of the papers in the case that plaintiff was the first to commit a breach of the agreement by non-payment of the note. Held, that the complaint stated no cause of action.</p>

Action by James E. Ketchum and others against Elizabeth Herrington to-recover a balance alleged to be due on a building contract. From a judgment in favor of plaintiffs, defendant appeals.

Application by Ida A. Batterson for an order requiring Sidney Osborne, her attorney, to pay over moneys awarded applicant as alimony by decree in a suit for divorce, instituted against her in the state of Yew Hampshire, which moneys, $3,500, were collected by said attorney and retained by him. He was instructed to compromise defendant’s claim for alimony at $2,500, without deductions for counsel fees or costs.

Action by Mary L. Butterfield against James Gordon Bennett for libel published in the Mew York Herald imputing unchastity to plaintiff. Defendant moves for a bill of particulars.

<p>Appeal from trial term.</p> <p>Action by Herbert Richmond against Arnold C. Soportos. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Frank J. Tinkham against John M. Knox, Jr., executor of William S. Livingston, deceased. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Examination of Defendant before Trial—Discretion of Court.</p> <p>The granting of an order for the examination of defendant before trial rests within the sound discretion of the court.</p> <p>2. Same—Impertinent Inquiries.</p> <p>The objection that such order is desired for the purpose only of annoying and harassing defendant is without weight, in view of the power of the judge to keep plaintiff within proper bounds and to exclude impertinent inquiries.</p> <p>8. Same—Stage of Proceedings.</p> <p>Such examination may be had before service of a complaint on defendant under Code Civil Proc. § 870, permitting the same “at any time before trial.”</p>

<p>Appeal from trial term.</p> <p>Action by Margaret Nix against Nora Donovan. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Contributory Negligence of Servant—Evidence.</p> <p>Plaintiff operated a circular saw, with a movable carriage attached, on which was a vise holding a rod of rubber, from which disks were cut by moving the carriage up to the saw. The rubber slipped from the jaws of the vise, when moved up to within an inch of the saw, and plaintiff proceeded to readjust the same without moving the carriage back, and in so doing his hand came in contact with the saw. He had been instructed to look out for his fingers, and was aware of the dangers of the machine. Reid, that he was guilty of contributory negligence, and could not recover.</p> <p>3. Same—Instruction by Master—Obvious Dangers.</p> <p>The contention that the employer was culpably negligent in not instructing plaintiff as to the dangers of the machine, and the liability of a short piece of rubber to slip from the vise, could not be sustained, in view of the fact that its dangers were perfectly obvious, and of plaintiff’s testimony, which showed that he appreciated them.</p> <p>3. Same—Proximate Cause of Injury.</p> <p>The proximate cause of plaintiff’s injury being his failure to move the carriage back, for the purpose of adjusting the rubber, the fact that the vise had fiat, instead of concave, jaws, which would have held the rubber more firmly, was immaterial, with respect to defendant’s liability.</p>

<p>Appeal from special term.</p> <p>Action by Marvelle W. Cooper against the city of Brooklyn to vacate an assessment. Judgment for defendant. Plaintiff appeals.</p>

<p>1. Appeal—Review—Weight of Evidence.</p> <p>Where, in an "action on a contract lor the sale of stock, the testimony gives two versions of the contract, and conflicts as to the amount paid, and as to a tender of such stock, and as to the meaning of an arrangement between the parties, whereby defendant was to make a final payment when he had matters “fixed up, ” the facts are properly for the determination of the jury; and, if the court correctly instructs them, their findings thereon should not be disturbed on appeal.</p> <p>2. Same—Harmless Ebror—Variance.</p> <p>A variance between the proof and allegations of the complaint, whereby defendant sustained no injury, and as to which no objection was made, is not a ground for reversal.</p> <p>3. Sale—Action for Price.</p> <p>Upon judgment against a defendant for the purchase price of stock in plaintiff's possession he is entitled to have such stock deposited with the court for his protection.</p>

<p>1. Evidence—Conclusions of Witness.</p> <p>In an action for money alleged to be due under building contracts, defendants claimed damages because of plaintiff having filed a mechanic’s lien “in violation of the spirit and intent” of the contracts. Held, that a question whether there was “any arrangement’’between the parties as to plaintiff’s not filing a lien was incompetent and objectionable in form, as calling for a conclusion.</p> <p>2. Action on Contract—Evidence.</p> <p>In an action on building contracts, it appeared that defendant had refused to permit plaintiff to complete the work. Held, that questions as to the time defendant expended in supervising the completion of the work, or its value, introduced with the view of sustaining a counter-claim for the same, were inadmissible.</p>

<p>Appeal—Record—Omission op Material Evidence.</p> <p>In an action to recover the purchase price of goods, in which a sale was "denied by defendant, and the evidence was conflicting, there was a verdict and judgment for plaintiff, and defendant appealed, but omitted from the “case” certain of its letters to plaintiff respecting the transaction, which letters were admitted in evidence and taken by the jury into the jury-room for reference. Held, that the judgment should not be disturbed, since the court cannot say but that such letters may have influenced the verdict for plaintiff.</p>

Certiorari on the relation of Charles S. Taber and another against John P. Adams, commissioner of city works of the city of Brooklyn, to review a sewer assessment. From a judgment for defendant, relators appeal.

<p>Sale—Validity—Change of Possession—Assignment foe Benefit of Ceeditoes.</p> <p>A debtor, after selling certain personal property without delivering possession, made a general assignment for benefit of creditors, after which an execution was levied thereon as the property of the purchaser. Meld that, the sale being invalid for want of delivery of possession, the property passed to the assignee, and a purchaser from him, bo no, fide and for value, obtained a good title, and could recover possession from the officer levying the execution, who defended solely on the ground that the goods were the property of the first purchaser.</p>

Action by Emily Guión against William H. Mundy for money loaned. Defendant appeals from a judgment for plaintiff entered on the report of a referee.

Action by Fanny Hyman against Betti Friedman for foreclosure of a mortgage on real property. Plaintiff appeals from a judgment for plaintiff entered on trial by the court without a jury, and from an order denying a motion for a new trial.

Action by Annie Kirsch against Hyman Kirsch for a separation. Defendant appeals from an order directing the payment of alimony and a counsel fee.

Action by the A. B. Cleveland Company against the A. C. Nellis Company to recover the purchase price of seed sold and delivered by plaintiff to defendant, the answer admitting the sale and delivery of the seed, but denying the value thereof, and also seeking by way of, counter-claim to recover damages for plaintiff’s alleged breach of warranty in the sale and delivery of seed other than that for the recovery of the purchase price of which this action was brought.

<p>Appeal from trial term.</p> <p>Action for deceit by Minnie Paul Powell against Victor S. Flechter. -Judgment for plaintiff, and order denying a motion for a new trial. Defendant appeals.</p>

<p>Appeal from city court, general term.</p> <p>Action by Simon Auerbach and others against Henry O. L. Peetsch and others. From a judgment for plaintiffs, defendant Peetsch appeals.</p>

Action by Samuel Schurr against the New York & Brooklyn Suburban Investment Company, for services rendered under a contract with representatives of the defendant. After performance of the contract, the trustees of defendant, acting as a board, promised to pay him the agreed compensation. Judgment for plaintiff. Defendant appeals.

' Action by Samuel Fuld and another against the Burr Brewing Company, upon a guaranty of a lease. The leased premises were occupied by defendant’s -customers, and contained fixtures mortgaged to it. Judgment for defendant. Plaintiffs appeal.

Action by James Cunningham against Annie L. Hatch and others to foreclose a mechanic’s lien. Defendants appeal from an order vacating a judgment by default, and requiring the defendants to return a deposit made to the-county clerk for the purpose of discharging the lien, and which was withdrawn by defendants after judgment.

Action by Adolphe Scherrer against the Music Hall Company of Hew York, Limited, Isaac A. Hopper and James Kelly, Jr., composing the firm of Isaac A. Hopper & Co., Charles Plock and Wilhelmine L. Schneider, composing the firm of Charles Plock & Co., and others, to enforce a mechanic’s lien against the sureties on a bond filed to discharge said lien.

Action by Alexander McSorley against James A. Faulkner and another upon an implied promise to pay for the use of a telephone. Judgment for plaintiff. Defendants appeal.

<p>'1. Review on Appeal—Judgment on Pleadings.</p> <p>Where judgment is directed on the pleadings, the only question on appeal is Whether or not the answer raises any issue for trial.</p> <p>:2. Action bt Corporation—Proof of Organization.</p> <p>Under Code Civil Proc. § 1776, providing that a plaintiff corporation need not prove its incorporation upon the trial, unless the answer contains an affirmative allegation that it is not a corporation, an allegation in the answer that defendant has no knowledge or information sufficient to form a belief as to an incorporation alleged in the complaint does not require plaintiff to prove the same.</p> <p>:8. Action on Contract—Pleading.</p> <p>In an action upon a specific agreement the answer did not deny the same, but set up another and different agreement, under which a less sum was admitted due. Held, that the answer was insufficient under Code Civil Proc. § 500, providing that . the answer must consist of a general or specific denial of each material allegation of the complaint, or a statement of new matter constituting a defense or counterclaim.</p> <p>-4. Pleading—Failure to Dent Allegations.</p> <p>A cause of action confessed by non-denial is not open to traverse or contrary proof on the trial.</p> <p>>6. Same.</p> <p>An allegation in an answer that defendant was indebted $100 “and no more, ” on an agreement therein set up, distinct from that set up in the complaint, on which $400 is alleged to be owing, does not qualify the admission of the latter allegation by failure to deny it.</p>

Action by Charles A. Drefs and another against Henry C. Wadsworth and? others to set aside two deeds conveying lands. Judgment for plaintiffs» Defendant Wadsworth appeals.

Action by George L. Pratt against Theodore Myers and another to recover ■certain bank deposits. From an order discharging defendants upon payment into court of the fund in controversy, and requiring Thomas S. Croly and ■Gorman, sheriff, to interplead as parties defendant, plaintiff appeals.

Cross-appeals from court of sessions, Monroe county. Maurice E. Danahy was indicted for publishing and selling obscene matter. A demurrer to the indictment was sustained as to several counts, and overruled as to the others, and defendant and the people bring cross-appeals.

<p>Blander—Excessive Damages—Remittitur.</p> <p>In an action by one woman against another for slander, it appeared that they belonged to two families, living in one house, and that certain causes of disagreement had developed into a chronic quarrel. Defendant was of irascible temper and violent speech, and in angry conversation with plaintiff and her father used language imputing unchastity to plaintiff. No one else heard the words, except when, in a few instances, they were overheard by casualty. On the trial an unsuccessful attempt to justify the words was made, and defendant boasted that she was worth $80,000. Held, that a verdict for $3,000 was excessive, and a new trial would be granted unless judgment for $1,000 be accepted.</p>

Action by Charles Carter against Michael Stork. From a judgment for plaintiff, entered on the findings of the special county judge, defendant appeals.

Action by Sarah F. Blake against Alfred 0. Barnes and others for an accounting and the construction of a will. From a judgment dismissing the complaint upon the merits, the plaintiff appeals.

Action by Margaret Sistare against Austin Heckscher to set aside a conveyance on the ground of misrepresentation and fraud. From a judgment directing the reconveyance of the property, defendant appeals.

<p>■Evidence—Deeds-=Cofy of Record.</p> <p>Colonial Act Oct.,30, 1710, § 4, provides that transcripts of conveyances of land .thereafter executed, being duly acknowledged and recorded, shall be as effectual in evidence as if the originals were produced. Act 1771 (2 Van Schaiek’s Laws, vpp. 611, 612) recites the ancient practice of recording deeds upon the previous acknowledgment of the grantors, or proof by subscribing witnesses thereto; and section 4 provides that no conveyance shall thereafter be recorded unless acknowledged by the grantor, or'proved by one of the subscribing witnesses, or, if they be dead, by proof of their handwriting. Act Feb. 26, 1788, provides that deeds, to be ■entitled to record or to be read in evidence, must be acknowledged by the parties thereto, or proved by one or more of the subscribing witnesses; and Act Jan. 29, 1811, § 1, (Rev. Laws 1813, c. 97, § 6,) provides that a sworn copy (in the Revision, .a copy of the record certified by the"clerk) of any conveyance executed prior to July 4, 1776, and acknowledged or proven according to law, shall have the same ■effect, as evidence, as the original. Held, that neither the act of 1710, nor the ancient practice as evidenced by the subsequent statutes referring thereto, authorizes the admission in evidence of a certified copy of the record of a paper purporting to be a deed dated April 23, 1759, signed by the grantor and two subscribing witnesses, and recorded December 10, 1761, upon an affidavit by the scrivener to the effect that he saw the grantor sign, seal, and deliver the same, and that the subscribing witnesses signed their names in his presence.</p>

Exceptions from circuit court, Hew York county. Action by William M. Hall against Susan L. Roberts and others, executors of Marshall 0. Roberts, deceased. There was a verdict for plaintiff, and defendants move for a new trial on exceptions ordered to be heard in the first instance at general term.

Action by Erasmus D. Garnsey against Joseph E. Bhodes to recover the balance due upon a contract for the erection of a house, and also a claim for extra work. From the judgment of the referee dismissing his complaint upon the merits the plaintiff appeals.

<p>Appeal from special term, Hew York county.</p> <p>Action by Mary A. Dickinson against Albert E. Dickinson for divorce. From a judgment granting the divorce, defendant appeals.</p>

Action by Deborah Scragg against George H. Scragg for divorce. Defendant appeals from an order directing the payment of alimony and a counsel fee.

<p>L Conveksion—Evidence.</p> <p>In an action against a receiver of stolen goods by the owner thereof, a witness cannot be questioned as to the receipt of packages by members of defendant’s family, for the purpose of showing that such members were “recipients of the thief’s bounty. ”</p> <p>2. Review on Appeal—Objections not Made Below.</p> <p>The ground that the answer to the question would have tended to impeach the credibility of the witness, not being suggested as a reason for the admission of the testimony on the trial, cannot be considered on appeal.</p>

Action by the Sterns Paper Company against Joseph Y. Johnson and another for goods sold and delivered. From an order denying a motion to vacate an attachment, defendants appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Morris H. Brown against Richard B. Wigton and others. From an order denying a motion to vacate an attachment defendants appeal.</p>

<p>Associations—Expulsion op Members.</p> <p>By-laws of an association incorporated under Act April 11, I860, “for the incorporation of societies or clubs for certain social and recreative purposes, ” provided for special meetings of the trustees on notice in writing to each member of the board, and authorized the expulsion of a member at a special meeting, a two-thirds vote of the trustees present being required therefor. Held, that the board had no jurisdiction to expel a member at a special meeting, of which one of the trustees did not receive written notice, and at which such trustee was not present; and that the member so, expelled was entitled to a mandamus to restore him to membership.</p>

Claim by Maggie Gillespie against the estate of Catharine A. Valentine, presented to executors and referred under 2 Rev. St. p. 88, § 36, (8th Ed. p. 2561, 36.) From an order partly overruling and partly confirming the referee’s report, claimant appeals.

Petition by Michael Duffy to vacate an assessment for public improvements. From an order denying a motion to dismiss the application, the mayor, aldermen, and commonalty of the city of New York appeal.

Action by George Tilles against Charles H. Albright and another. Frederick S. Passavant and others, junior creditors of defendants, move to set aside a judgment confessed by them in favor of plaintiff. From an order denying the motion the moving parties appeal.

Action by Winthrop S. Gilman and another against the First National Bank of the City of New York to recover the amount of a draft paid by mistake. The complaint was dismissed on the trial before a jury, and plaintiffs’ exceptions were ordered to be heard in the first instance at general term.

Proceedings for the probate of the will of John Patterson, deceased. From an order of the surrogate denying a motion to set aside a verdict entered in the court of common pleas, Daniel Paxton and James B. Hackett, contestants, appeal.

<p>1. Election Day—Service of Process—Inspectors of Election.</p> <p>Laws 1842, c. 130, § 4, providing that no civil process or proceeding in the nature of civil process shall be served on election day on any elector entitled to vote, does not apply to process against a board, or a chairman thereof, having public duties to perform, such as the inspector of elections, and will not prevent the service on him on election day of an order to show cause why a writ of mandamus shall not issue against him requiring him to permit relator to vote.</p> <p>8. Same—Motion to Court.</p> <p>The application for such mandamus was a motion, and the issuing thereof an order, within Code Civil Proo. §§ 767,768, which declare respectively that an application for an order is a motion, and that a direction of a court or judge, etc., is an order; therefore, such application having been made to a judge of the first judicial district, who is empowered by section 770 to entertain motions which, in other districts, must be made to the court, was not a motion to a court, and consequently not invalidated by Laws 1842, c. 130, § 5, (1 Banks’ Rev. St., 6th Ed., p. 427,) providing that no court shall be opened or transact any business on election day.</p> <p>8, Same—Powers of Judges of First Judicial District.</p> <p>Code Civil Proo. § 2068, which provides that, “except where special provision therefor is otherwise made in this article, a writ of mandamus can be granted only at a special term of the court, ” does not take the application for a mandamus out of the general provision of section 770, the object of which was to give the judges of the first judicial district all the powers of a court without the formality of being in court.</p> <p>4. Same—Construction of Order—Surplusage.</p> <p>The order issued by a justice of the supreme court required respondent “to show cause before me at a special term thereof to be held at chambers in the county courthouse. ” Held, that the use of the words “special term” was surplusage, and that the order was returnable before the justice individually, and not as a court.</p> <p>5. Sam:e—Closing Clerk’s Office—Attaching Seal of Court.</p> <p>The fact that the law required the county clerk’s office to be closed on election, day did not invalidate the sealing of the writ by the clerk on that day, because the judge, having power to issue the writ requiring a seal, had power also to procure the sealing and attestation thereof by the clerk, and because the law merely required that the office should be closed, but does not prohibit the clerk from discharging any of his duties.</p>

Certiorari, at the relation of John A. Eoebling’s Sons Co., of Hew York, to review the proceedings of Edward Wemple, comptroller of the state of Hew York, in assessing taxes upon the relator, and in refusing a readjustment thereof. The writ was issued at special term, Hew York county, returnable to Albany county.

<p>Appeal from circuit court, Rensselaer county.</p> <p>Action by Hannah Lawless against the city of Troy. From a judgment, for plaintiff, defendant appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Fred A. Bradt against James T. Scott and another for professional services. From a judgment for plaintiff, defendants appeal.</p>

Action by Albert M. Palmer, as receiver of the property, property rights, and things in action of Bartley Campbell, against David P. Colville and Charles L. Webster, as executors of the last will and testament of Samuel Colville, deceased, Emeline Colville, J. Wesley Bosenquest.'and Edward G-. Gilmore, for satisfaction of an equitable lien upon a lease. Erom a judgment dismissing the complaint plaintiff appeals.

Certiorari at the relation of the Edison Electric Light Company to review the proceedings of Edward Wemple, comptroller of the state of New York, in imposing taxes upon the relator, and in refusing an application for a readjustment thereof. The writ was issued at special term, New York county, and made returnable to Albany county.

From an order of removal, from an order referring the application to a referee, from an order denying a motion to remove a referee, and from an order requiring a witness to attend! and testify, the assignee appeals. The referee was sought to be removed on the ground that he had displayed prejudice in charging an attorney for one-of the parties with attempting to delay the reference.

Action of accounting by William D. Mills, as administrator, etc., of William Dolsen, deceased, against Joseph Husson, as trustee, etc., of Jacob D. Mills, and others. From a judgment dismissing the complaint on the merits, and from an order denying a motion for a rehearing, plaintiff appeals. Upon the accounting plaintiff produced a promissory note, payable to said Dolsen, dated March Id, 1854, payable one year after date. The payee died in January, 1865.

Action by Rudolph A. Loewenthal against the Philadelphia Rubber Works to recover damages for breach of contract. From an order denying the motion to make the answer more definite and certain the plaintiff appeals.

<p>Payment—Application—Statute of Limitations.</p> <p>In an action on several promissory notes, apparently barred by the statute of limitations, the court cannot assume, in the absence of evidence, that certain payments made generally by defendant to plaintiff were applied to any particular notes, so-as to remove the bar, when it appear that defendant was otherwise indebted to plaintiff at the time of such payments.</p>

Action to set aside two deeds, by Henry 27. Fults against.Wilbur Paul, administrator of Erwin Paul, deceased, and others. From a judgment entered in Steuben county on the report of a referee, dismissing the complaint as to defendant Wilbur Paul, plaintiff appeals.

Action by John F. Zebley against the Farmers’ Loan & Trust Company for an accounting. From an interlocutory judgment sustaining a demurrer ■to the complaint, plaintiff appeals.

<p>1. Elevated Railroads—Injury to Abutters—Special Benefits.</p> <p>In an action to restrain the maintenance and operation of an elevated railway in front of plaintiff’s premises, the refusal of the referee to find that the presence of defendant’s station, two blocks distant from plaintiff’s premises, brought a large number of persons daily in the immediate neighborhood of such premises; that its proximity was advantageous to the business portion of said premises, and produced a special benefit to the same for business men,—is not a ground for reversal, unless the evidence so clearly established the facts as to make the refusal an error of law.</p> <p>3. Same—Findings of Referee.</p> <p>In such a case the refusal of the referee to find as a conclusion of law that, in estimating and fixing the sum which defendant might pay to escape the injunction, the special benefit resulting from the proximity of its station to the premises in suit should be set off against any consequential damage resulting to the lots and buildings, respectively, from the appropriation of or interference with the easements appurtenant thereto, is not erroneous, where it does not appear, either from the evidence or from the findings of the referee, that there were any such special benefits resulting from defendant’s railroad to plaintiff’s premises.</p>

<p>Appeal from special term, New York county.</p> <p>Action by the American Bank-Note Company against the Metropolitan Elevated Bailway Company and another. Erom a judgment for plaintiff, defendants appeal.</p>

<p>Taxation of Costs—Waiver of Objections—Appeal.</p> <p>Where a judgment in defendant’s favor for costs has been argued by plaintiff on appeal and decided, he thereby waives his right to take objection in reference to the taxation of such costs.</p>

<p>Appeal from special term, Hew York county.</p> <p>Action by the United Lines Telegraph Company against Hugh J. Grant, sheriff of the city and county of Hew York, to enjoin defendant from enforcing a warrant issued to him for the collection of an assessment on plaintiff’s property. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

Action by Laura F. Bradhurst against Augusta C. Field and others, executors of Thomas C. P. Bradhurst, etc., to construe the will of said Thomas C: P. Bradhurst. From a judgment rendered by a judge sitting without a jury plaintiff appealed.

New York county. Action by the Appollinaris Company, Limited, against George W. Venable and another for an injunction. Judgment for defendants dissolving the preliminary injunction and dismissing the complaint. Plaintiff appeals from an order appointing a referee to ascertain and assess the damages sustained by defendants by reason of the preliminary injunction.

Application of the mayor, aldermen, and commonalty of the city of Hew York to acquire wharf property. The Consolidated Gas Company appeals from an order appointing commissioners of estimate.

<p>Appeal from circuit court, Niagara county.</p> <p>Action by Esther O’Hara against Lewis W. Robinson for the collection of a promissory note. Defendant had judgment, and plaintiff appeals.</p>

Action by the people of the state of Hew York against the Bushwick ■Chemical Company for the appointment of a receiver of the works. From an order overruling exceptions to report of referee, and discharging the receiver, the Second national Bank of Mauch Chunk, Pa., and the Merchants’ national Bank of Burlington, Vt., claiming to be creditors of the Bushwick Chemical 'Company, appeal.

Action by Robert L. Mordecai, an infant, by Allen L. Mordecai, his guardian ad litem, against Dyer Pearl, Eugene L. Mordecai, and George C. Thomas to recover money advanced as margins on stock purchased and sold. From a judgment for plaintiff, the defendants appeal.

Action by W. Howard Gilder, as chairman of the purchasing committee of the Western Dressed Beef Company, against John H. Davis and Jennings S. Cox, partners as John H. Davis & Co., to recover money claimed by the latter as commissions under an agreement to effect a sale of lands. At the close of the evidence the complaint was dismissed on the merits. Plaintiff appeals.

Action by Charles B. Rowley against the National Bank of Deposit for wrongfully refusing to pay a check drawn on it by plaintiff. A demurrer tcthe complaint was overruled, and defendant appeals.

This is an action by Horace C. Sylvester, Alexander P. Bell, and David H. Standish against John F. Crohan and William H. Dooner, Jr., to recover on a sight draft. From a judgment for plaintiffs, entered after decision°of the court without a jury, defendants appeal.

<p>Appeal from special term, New York county.</p> <p>Action by John Turney against Henry Van Gelder and Charles Van Gel-der and Henry J. Newton to set aside an assignment by the two Van Gelders to Newton for the benefit of creditors. Judgment for plaintiff.- Defendants -appeal.</p>

Action by Simon Rothschild against the Rio Grande Western Railway Company on certain bonds issued by the Denver & Rio Grande Western Railway Company; the latter company having consolidated with the State Line & Denver Railway Company to form the defendant company. From an interlocutory judgment overruling a demurrer to the amended complaint, defendant appeals.

Proceeding for the probate of the will of Bichard S. Hewcombe, deceased. From an order of the surrogate, denying a motion to send issues to the court of common pleas for trial before a jury, Ida Florine Lederer, a contestant, appeals.

Certiorari by William L. Markell to review the action of Stephen B. French and others, police commissioners, in dismissing the relator from the police-force.

Action by Sophia Brown, individually and as executrix of Edward H. Brown, against La Fayette J. Finch, for a partnership accounting. From an order of reference to hear, try, and determine the issues in the action, defendant appeals.

Case submitted on agreed statement. ' Action by Andrew J. Wiglitman against Henry Schleifer for specific performance. Judgment for plaintiff. The agreed statement showed that defendant, being the owner in fee and possessed of certain real property in New York city, agreed on September 1, 1891, by a written contract, to convey the same to plaintiff on certain terms therein set out, $200 being paid as a deposit on the execution of the contract.

Action by Charles G-. Landon and Henry A. Hurlbut, as executors of the •last will and testament of Benjamin H. Hutton, deceased, against Mary N. Townshend, John Townshend, her husband, and Francis G. Wieclc, to recover real property. From an order vacating j udgment for plaintiffs, and granting a new trial, under Code Civil Proc. § 1525, plaintiffs appeal. The action was commenced in May, 1885.

Action by Elias S. Higgins against the mayor, aldermen, and commonalty of the city of Hew York to compel the determination of a claim to real property. The judgment for defendant was vacated on motion, pursuant to Code Civil Proc. §§ 1525, 1646.

<p>1. Estoppel in Pais—Fraudulent Procurement of Deed.</p> <p>Plaintiff and defendant, with their two sisters, were the sole heirs of their father and mother. They inherited from their father three parcels of land. The mother . died in possession of a homestead and certain furniture, but she had conveyed the-.' same to defendant by a deed, which the latter withheld from record. By fraudulently representing that the same had never been conveyed, defendant induced-plaintiff to become a party to two deeds, by one of which one "of the sisters quit-claimed to the other three all her interest in two of the parcels of their father’s., land and in the homestead, in consideration of the other deed, whereby the gran- " tees in the first quitclaimed to her all their interest in the remaining parcel of the father’s land. Field, that defendant was estopped from asserting, as against plaintiff, title under the deed from his mother, and plaintiff would be adjudged to be the-owner of one-third of the homestead and of one-fourth of the personalty.</p> <p>2. Same—Equity Jurisdiction.</p> <p>As the legal title to the premises was in defendant, and ejectment would not lie, and as plaintiff’s remedy was not confined to an action for damages, an action to-enforce her rights was properly brought in equity.</p> <p>3. Same—Objections Waived—Pleading.</p> <p>A defense that an action is one of which equity has no jurisdiction is waived un-“ less pleaded.</p> <p>4. Same—Possession of Plaintiff—Quieting Title.</p> <p>Code Civil Proc. § 1638, prescribing three years’ actual possession in plaintiff before an action can be maintained to determine conflicting claims to real estate, does, not govern such action, being applicable solely to actions founded on an alleged, legal title.</p>

Action by Ann E. Wynkoop against Mary S. Van Beuren and others foian injunction. The action was discontinued on plaintiff’s motion, against the objection of defendants. From an order of reference to assess defendants’ damages, sustained by reason of the preliminary injunction, plaintiff appeals.

Action by James B. Smith against Phebe C. Molleson to recover upon a -bond given to secure the performance of a contract. From an order denying the motion for a bill of particulars defendant appeals.

Action by Frederick A. Haight against Watson B. Dickerman, as president of the Hew York Stock Exchange, who claims to be a creditor of William K. Soutter, deceased, and entitled to share in the proceeds of his seat in the Stock Exchange. Heard on a motion to vacate a preliminary injunction. The motion was granted, and plaintiff appeals therefrom.

<p>1. Common Carriers—Injuries to Passengers—Evidence—Instructions.</p> <p>In an action against an elevated railroad company to recover damages for personal injuries received by a passenger, a medical witness testified that plaintiff’s injuries were likely to be permanent, in the sense that they would improve somewhat, but that she was not likely to ever get entirely over them. The court instructed the jury that, “if you consider she has been permanently injured, you may-award compensation for that. When I say, ‘If you consider,’ I mean if you consider from the evidence. ” Held, that sufficient weight was not given in such instruction to the rule that plaintiff was not entitled to recover unless her injuries were permanent.</p> <p>2. Same—Rejecting Plaintiff’s Testimony.</p> <p>The court also erred in declining to instruct the jury that it was their right to. reject plaintiff’s testimony because of interest.</p> <p>3. Same—Refusal to Dismiss Complaint.</p> <p>The court erred in refusing to charge that the jury were not to consider the refusal of the court to dismiss the complaint as any indication of the opinion of the. court as to the facts of the case.</p>

Action by Frederick E. Whitney against Imogene F. Orr, on a contract -made by defendant’s husband in her name. Plaintiff offered evidence to •show that the contract and a note made in consideration thereof were ratified by a person purporting to be defendant, whom he found at the husband’s place of business during his absence. From a judgment for plaintiff, defendant appeals.

New York county. Action by Ludwig Baumann against Elizabeth Moseley, as administratrix of Joseph B. Adamson, deceased, upon a disputed claim against the estate of the deceased. From an order denying the motion to set aside the referee’s-report, and for a new trial, defendant appeals.

Action by Joseph Beran against the Tradesman’s National Bank of New York and another on an assigned claim for an interest in real estate. From a judgment in favor of plaintiff, defendant bank appeals.

<p>Appeal from the court of general sessions, Hew York county.</p> <p>Indictment against Hugh Quinn for unlawfully having registered bottles in his possession. From a conviction defendant appeals.</p>

Action by Edward Ulrich, executor of, and trustee under the will of, Barbara Ulrich, deceased, against Charles Ulrich. From a judgment for plaintiff, defendant appeals.

Action by Abraham H. Cohen, as administrator, for an account from defendants, as surviving partners of plaintiff’s intestate. Judgment for plaintiff on a reference. Defendants appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Richard A. Springs, receiver of the I. Herrman Manufacturing -Company, against the Bowery National Bank. Prom a judgment for plaintiff, defendant appeals.</p>

Action by the Bank of Pittsburgh against Charles C. Murphy on an acceptance of a bill of exchange. Prom an order denying a motion to vacate an order for defendant’s examination before trial, defendant appeals.

Action by William M. English against Henry S. Sill and James H. Lee and others. From a judgment in favor of plaintiff, entered on the findings and decision of the court in an action to foreclose a mechanic’s lien, defendants James H. Lee and others, composing the firm of Lee, Holland & Co.,, appeal.

Action by David J. Boehm against George P. Lies and Emil Seidenberg to recover upon a contract for the purchase of stock. From a judgment for plaintiff, and an order denying a motion for a new trial, defendants appeal.

Action by Caroline Paret and others against the Hew York Elevated Railroad Company to recover damages to real property, caused by the erection- and maintenance of the railroad. From a judgment for the plaintiffs, entered on the verdict of a jury, and from an order denying defendant’s motion for judgment in its favor on the verdict, defendant appeals.

Action by Diedrich Tragman and Doris Tragman against Frederick M. Littlefield, to whom plaintiff had conveyed certain real estate, and his wife, Agnes H. Littlefield, to compel a reconveyance of part of said real estate, and payment over of the proceeds of another portion thereof sold by defendants, and the surrender and discharge of a mortgage of a portion thereof to defendant Agnes H. Littlefield.

Action by Arthur W. Andrews, as assignee of John Lucas, against -James T. White and another. Judgment for plaintiff. Defendants appeal. The action was brought on a contract, of which the material provisions areas folloxvs: John Lucas stipulated to take of defendants, at the price of $10 a volume, one set (12 volumes) of “the Hational Cyclopedia of American Biography, edited by James R. Gilmore, which is to contain biographical, sketch and vignette portrait of Lucas.

<p>Appeal from district court.</p> <p>Action by Henry R. Hydecker-against-Samuel Williams and another upon; an assigned contract for services. Judgment for plaintiff. Defendants appeal.</p>

Three actions by Frederick Holler and Henry Holler to foreclose mechanics’ liens,—one against George Sch welm and Filippa Apa and others, the second against said Schwelm and Tomasso Giordano and others, the third against said Schwelm and Michele Tarchini and others. George Schwelm, the contractor, alone made any defense. The other defendants were the property owners. The actions were referred and' tried together.

Action by Henry G. Bicknell against the Vertical Tube Boiler Company for money loaned. Defendant appeals from an order of the general term of the fcity court, affirming an order of that court denying a motion to vacate an attachment.

Action by the Toronto General Trusts Company, trustee, against the Chicago» Burlington & Quincy Railroad Company and the ¡National Bank of Commerce, of ¡New York, to recover certain shares of railroad stock. The complaint was-dismissed as to defendant railroad company, and judgment was rendered in favor of plaintiff against defendant bank. Plaintiff and defendant bank ap*peal.

Action by Millard F. Riley and another against William C. Rea and another for a breach of warranty. • From a judgment entered on the verdict, and from an order denying defendants’ motion for a new trial, defendants appeal.

<p>Appeal from special term, Monroe county.</p> <p>Action by Charles F. Otis, assignee of Francis Colin, against Thomas C. Hodgson, sheriff. From a judgment overruling his demurrer to the complaint, defendant appeals.</p>

Action by Marcus 0. Cunningham against the Massena Springs & Ft. Covington Railroad Company to recover on a contract for building defendant’s road. Paper A, referred to in the opinion, was an agreement between defendant and Richard Young for the completion of the pile bridge mentioned in the opinion. From a judgment for plaintiff, defendant appeals.

Proceedings to appraise the estate of E. D. G. Prime, deceased, for the purpose of assessing a collateral inheritance tax. From the order of the surrogate fixing such tax, the American Board of Commissioners for Foreign Missions and others appeal.

Action by Florence M. Lane and Bichard Lane, by Marietta L. Lane, guardian ad litem, against Frank Moss, executor, impleaded with George S. Hastings and George M. Curtis, to modify a decree, and enjoin the executor from paying certain money, under said decree, to his codefendants. Demurrer to the complaint overruled. Defendants appeal.

Petition by James Blewitt to vacate proceedings in which, on the application of Julia Blewitt, he was adjudged insane, and a committee of his person and property appointed. From an order dismissing all further proceedings-under his petition, James Blewitt appeals.

Action by Joseph F. Buckley and others against Mary Buckley and others for partition. From an order denying a motion for leave to enter judgment by George H. Stokes for full amount of fees, costs, and disbursements incurred, or to be incurred, by him as attorney in the action, Stokes appeals.

<p>1. Affidavit in Attachment—By Whom Made.</p> <p>A person who has general charge and supervision over the business of another person must be deemed to have sufficient personal knowledge to make an affidavit-in attachment for a debt owing to such person.</p> <p>2. Same.</p> <p>Code Civil Proc. § 636, declaring that an affidavit in attachment must show plaintiff to be entitled to a certain sum over and above all counterclaims “known to-him, ” allows the affidavit to be made by an agent, or other person than plaintiff, only when some excuse is given for not producing the affidavit of plaintiff.</p>

Action by Bridget McDonald, administratrix, against the New York Central & Hudson River Railroad Company, to recover damages for the death of Thomas McDonald. Decedent was a flagman in defendant’s employ, and was killed, while in the discharge of his duties, at a highway crossing, by being run over by defendant’s engine, running in the night without a headlight.

<p>Appeal from special term, New York county.</p> <p>Attachment by James I. Raymond against Michael Ganss and others. From an order vacating the attachment, plaintiff appeals.</p>

Exceptions from circuit court, New York county. Action by Austin G-. Eox, as receiver of the Cordova Apartment Association, against James J. McComb for moneys received to the use of the corporation. The complaint was dismissed, and plaintiff moves for a new trial on exceptions ordered to be heard in the first instance at general term.

Action by John Foley. Jr., and others, against the Mutual Life Insurance Company, to have a surrender of a life insurance policy adjudged void. Judgment for plaintiffs. Defendant appeals.

Action by Edgar Saltus against the Belford Company for an accounting, and for a permanent injunction to restrain defendant from publishing plaintiff’s books. Defendant appeals from an order continuingan injunction pertdente lite, restraining him from publishing plaintiff’s books.

Action by Henry W. Peabody and another against Emilio Cortada and another. Defendants answered, setting up SJ counterclaim. From an order requiring them to file a bill of particulars, defendants appeal.

Action by John A. Nichols against the Scranton Steel Company for breach of contract. Judgment for plaintiff. Defendant appeals. Mr. Bullitt, the arbitrator provided for by the modified agreement set out in the opinion, on a submission to him of how much abatement should be allowed defendant, decided that none should be allowed.

Action by Frank B. Caldwell against J. Martin Bodine. From a judgment for defendant entered on a nonsuit, and from an order denying a motion for a new trial, plaintiff appeals.

<p>Appeal from circuit court, Niagara county.</p> <p>Action by Lyman H. Tucker against Sarah A. Tucker and others. From a judgment dismissing the complaint entered on a nonsuit, plaintiff appeals.</p>

Proceedings by William Weaver, superintendent of the poor, to require Hiram Benjamin and others to support and maintain Jemima Benjamin, a poor person. From an order denying a motion to modify an order previously made, the petitioner appeals.

Action by Erastus F. Root, overseer of the poor of the town of Bolivar, on ■ the relation of Arthur G. Fisher and others, against Albert J. Alexander, for the recovery of a penalty for a violation of the internal revenue laws. From an order dismissing the complaint, relators appeal.

Exceptions from circuit court, Allegany county. Action by Addis E. Perry against Patrick J. Sutley. Plaintiff moves for ■a new trial on a case and exceptions, ordered to be heard in the first instance •at general term, after a nonsuit granted at circuit.

<p>1. Eminent Domain—Recovery of Award—Action at Law.</p> <p>A common-law action will lie to recover the amount of an award made and confirmed in proceedings to condemn land for purposes of a street. Sage v. City of Brooklyn, 89 IT. Y. 189; McCormack v. Same, 14 IT. E. Rep. 808,108 IT. Y. 49; Donnelly v. Same, 24 IT. E. Rep. 17,121 IT. Y. 9,—followed.</p> <p>2. Same—Limitation—Effect of Confirmation.</p> <p>The confirmation of an award in condemnation proceedings is in nature of a judgment, and the statutory limitation is therefore 20 years from date thereof. Sage v. City of Brooklyn, 89 N. Y. 189; McCormack v. Same, 14 N. E. Rep. 808, 108 IT. Y. 49; Donnelly v. Same, 24 IT. E. Rep. 17,121N. Y. 9,—followed.</p> <p>8. Same—Waiver of Right to Award.</p> <p>Payment by a landowner of an assessment for grading and paving a street, after an award has been made to the owner for land condemned for the purpose of such street, is not a waiver of the owner’s right to have payment of the award.</p> <p>4. Same—Interest on Award.</p> <p>Under Laws 1870, c. 519, (Buffalo city charter,) tit. 8, § 15, providing that an award for land condemned by the city shall be paid within one year after its confirmation by the supreme court, interest began to run on the award where the city took immediate possession of the land condemned, at the expiration of one year after the award is confirmed, and not from notice of demand required by the charter to be given to the city before an action can be brought on the award. Donnelly v. City of Brooklyn, 24 N. E. Rep. 17, 121N. Y. 9, distinguished.</p>

Action for personal injuries by Alpheus ÍT. Smith against the Pennsylvania Coal Company. From a judgment for defendant entered on a verdict of a jury, and an order denying a motion for a new trial, plaintiff appeals.

<p>Appeal from special term, Monroe county.</p> <p>Action by Charles W. Palmer against Augusta B. Gould, Augustus C. Bowen, and Jennie M. Bowen for the specific performance of a contract to convey land. The complaint was dismissed as to Jennie M. Bowen. Judgment for plaintiff. Defendants appeal.</p>

<p>Oleomargarine—Intent to Sell as Dairy Product—Instruction.</p> <p>.Laws 1SS5, c. 183, § 8, as amended by Laws 1886, c. 577, provides that “no person shall manufacture, mix, or compound with or add to natural milk, cream, or butter any animal fats, or animal or vegetable oils; nor shall he make or manufacture any oleaginous substance not produced from milk or cream, with intent to sell the same for butter or cheese made from unadulterated milk or cream, or have the same in Ms possession, or offer the same for sale, with such intent; nor shall any article or substance or compound so made or produced be sold, intentionally or otherwise, as and for butter or cheese, the product of the dairy. ” Held that, in order to prove a violation of such statute, it was not sufficient to show that defendant had manufactured oleomargarine by mixing animal fats with natural milk, etc., but the intent to sell the oleomargarine so manufactured as the product of unadulterated milk or cream must also appear.</p>

<p>Riparian Rights—Sudden Change in Course of Stream.</p> <p>Where a creek, in a time of freshet, breaks through a narrow neck of land, and afterwards continues to flow through the new channel, separating the neck from the tract to which it originally belonged, such separation is not caused by the “wear of the creek, ” within the meaning of a deed which conveyed to plaintiff the tract of which such neck was apart, “less the wear of the creek. ”</p>

Action by Mary Kiefer, as administratrix of Joseph Kiefer,- deceased* against the Grand Trunk Railway Company of Canada to recover damages foe the negligent killing of plaintiff’s intestate. From so much of an order of the special term as imposed terms on plaintiff as condition of extending time for the execution of an open commission to take evidence, plaintiff appeals*

Action by Simon Butts against Addison B. Fillmore to set aside a conveyance of land. From a judgment for defendant of the trial court,- equity term, and from an order of special term denying his motion for new trial, plaintiff appeals.

<p>1. Street Railroads—State Bridge—Apparent Defects—Directing Verdict.</p> <p>Where it was shown conclusively by evidence wholly uncontroverted that a street railroad company laid its tracks upon and across a bridge constructed and maintained by the state, and that plaintiff was injured wrhile a passenger in one of its cars by the falling of balance weights used in elevating and lowering the bridge, which were suspended by a defective appliance, whose imperfection could have been easily discovered by the manufacturer, and there was no evidence that defendant had ever inspected the bridge, the court properly directed a verdict for plaintiff.</p> <p>3. Excessive Damages—Bersonal Injuries.</p> <p>In an action for personal injuries sustained by a healthy child 14 years old, a verdict for S3,500 will not be disturbed as' excessive, where it appeared that she was rendered senseless for 24 hours, her face was badly cut, her sight affected, and her shoulder rendered sore; that 20 months after the accident she was nervous and sleepless, and did not have a good appetite; and that the effects of the injury might continue a considerable time.</p>

Action by Clarissa C. Lathrop against Helen C. Lathrop and others to construe the will of Jemima W. Lathrop, deceased. From a judgment adjudging certain bequests and devises to plaintiff to be held in trust for her benefit, plaintiff appeals.

Action by the people, on the relation of Alexander Meakim and others, as the board of commissioners of excise of the city and county of New York, against Max Eckman and others, for breach of a bond. Defendants appeal from an interlocutory judgment entered upon an order overruling a demurrer to the complaint.

Action by Thomas F. Mason, as receivér of the Widows’ & Orphans’ Benefit Life Insurance Company, against Drurie S. Sandford and others, as executors of Samuel T. W. Sandford, deceased, to recover damages for improper distribution of the assets of said company by defendants’ testator. From an order severing the action, and reviving the same against them, and granting leave to serve a supplemental summons and complaint, defendants appeal.

Action by Robert Davison against Henry C. Luckman. From a judgment of the county court, reversing a judgment of a justice of the peace for plaintiff, the latter appeals.

Action by Charles H. Shepard, administrator of Herbert M. Shepard, deceased, against the New York Central & Hudson River Railroad Company, to recover damages for the death of decedent while in defendant’s employ. From a judgment entered on a verdict for plaintiff for $3,527.22, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from special term, Orleans county.</p> <p>Action on a forfeited recognizance by the county of Orleans against Mary E. Winchester and Ira D. Watson. From a judgment for plaintiff, defendant Watson appeals.</p>

Petition by John Laughlin to compel the executor of the will of Anna H. Fargo to pay a claim against the estate of decedent. The petition was dismissed by the surrogate, and petitioner appeals.

Action by Theresa Bauer, administratrix, etc., of Lorenz Bauer, deceased, against the city of Buffalo for damages for negligent killing of plaintiff’s intestate. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Negotiable Instruments—Bona Fide Indorsees.</p> <p>In an action by the holder of notes given by defendant in payment for seed rye bought of a seed company at a high price, it appeared that the company’s agent, a friend of defendant, overpersuaded him by the promise that the company would sell for him part of the crop raised therefrom at an enhanced price, which the company failed to do, and defendant alleged this as a false representation. The contract involved the cheating of some one, and defendant fully understood its terms. Held that, though it was doubtful how far the false representation induced the contract, it was of sufficient importance to put plaintiff to proof of his being a bona fide purchaser for value, before maturity.</p>

Exceptions from circuit court, New York county. Action by Ellen Wall, administratrix of Thomas Breen, deceased, against 'B. H. Jones and another, to recover damages for the negligent killing of .plaintiff’s intestate. A verdict was directed for defendants, and plaintiff .moves for a new trial on exceptions ordered to be heard in the first instance at ■the general term.

Certiorari on the relation of the Savings Bank of New London, Conn., to review the action of Michael Coleman and others, commissioners of taxes and assessments in the city of New York, in assessing certain national bank stock of the relator. The relator appeals from an order dismissing the writ.

Petition by Charles (X Morris as executor, trustee, etc., praying for an or- . der to mortgage or sell certain lands of the trust estate to pay assessments thereon. Prom an order granting the prayer of the petition Ralph Morris and others, infants, by their guardian ad litem, Henry W. Conklin, together with Jeanette Morris and another, appeal.

Action by Stillman F. Pratt, as administrator, etc., against the Lake Shore & Michigan Southern Railway Company, for the wrongful death of plaintiff’s intestate. Verdict and judgment for plaintiff. Defendant appeals.

Ejectment by Orrin Patten against Thomas Eindley. Verdict for plaintiff. Plaintiff appeals from an order setting aside the verdict, and granting a new trial.

Action by William 0. Douglass against Peter Ferris and Abbie A. Prouty, as executrix of Rodney Sargent, deceased, to recover upon a guardian’s bond, upon which the defendant Ferris and another and Rodney Sargent were sureties. Judgment for plaintiff. Defendants appeal.

Judicial settlement of the accounts of Worthington Frotliingharn, executor of James McClure, deceased. From a decree construing decedent’s will* Edward McClure and four others, infant heirs and devisees, by Francis H. Woods, their special guardian, appeal.

Indictment against John H. Phelps for advising a woman to take medicine to produce an abortion. Defendant was convicted, and, the conviction being reversed on appeal, (15 H. Y. Supp. 440,) the people move to amend the order of reversal so as to show that the judgment of the court below was reversed on questions of law only.

Ejectment by James W. Holloway against Franklin H. Delano and others. From a judgment for plaintiff entered on the verdict of a jury defendants appeal.

<p>Appeal from circuit court, New York county.</p> <p>Ejectment by James W. Holloway against Charles P. Southmayd. Judgment for plaintiff. Defendant appeals.</p>

Ejectment by James W. Holloway against Franklin H. Delano and others. From a judgment for plaintiff entered on the verdict of a jury, defendants appeal.

<p>Appeal from circuit court, Mew York county.</p> <p>Ejectment by James W. Holloway against Charles F. Southmayd and others. -Judgment for plaintiff. Defendants appeal.</p>

Action by Charles C. Webb against Theodore A. Myers for money had and received. From a judgment by special term, overruling defendant’s demurrer to the complaint, defendant appeals.

<p>Proceeding for the settlement of the accounts of Margaret McCabe as administratrix of the estate of Thomas McCabe, deceased. The schedule of the account filed by the administratrix alleged that Thomas A. Durning, one of the next of kin of decedent, had assigned his interest in the estate to Hosannah Hughes; and Durning objected to the account on the ground, among others, that the assignment was without consideration, and was procured to be executed by him by means of false and fraudulent representations, and was therefore void.</p>

Action by William Hart, Jr., against C. H. Albright and Joseph Steindler. Demurrer on the ground that the complaint did not state facts constituting cause of action.

Two actions, one by the Western national Bank and the other by the Homestead Bank, against Frederick Wood and others. Judgment was entered in each ease on a verdict directed for plaintiff, and defendant Wood appeals.

Action by Elizabeth Buckel against Anna Suss for enticing away plaintiff’s husband. Judgment for defendant. Motion for new trial. Plaintiff alleges that the acts complained of took place while she and her Husband were living and cohabiting as man and wife.

Action by Jacob Bauth against William 33. Davenport, executor, and Sophia Cardwell, executrix, of Samuel Cardwell, Sr., deceased, to recover damages for injuries to property occasioned by the leaking of water througli the roof of premises leased by Samuel Cardwell, Jr., to plaintiff.

<p>1. Committee of Insane Wife—Powers—Release of Dower.</p> <p>Code Civil Proo. § 2339, provides that the committee, either of the person or the property of a lunatic, is subject to the direction and control of the court by which he was appointed, and that the committee cannot alien, mortgage, or otherwise dispose of real property, except to lease it for a term not exceeding five years, without special direction of the court; and section 2321 provides that the court must preserve the lunatic’s property from waste and destruction. Section 2348 authorizes the court, upon application, to order the sale, conveyance, mortgage, or lease of his real property, or a term, estate, or other interest in real property. Held, that neither the court nor the committee of an insane wife had authority to execute a deed depriving her of her inchoate right of dower.</p> <p>2. Vendor and Vendee—Refusal to Accept Deed—Dower Rights of Insane Wife.</p> <p>A purchaser of land from the husband of such lunatic was justified in refusing to accept a deed by the husband and committee; 1 Rev. St. pt. 2, tit. 3, c. 1, § 16, providing that no deed by a husband, without the assent of his wife, evidenced by her acknowledgment thereof, etc., shall prejudice her right to dower, or preclude her from the recovery thereof.</p>

Application by Ladislas Karge, as a creditor of Michael J. Duffy, deceased, to mortgage, lease, or sell the real property of decedent for the payment of his debts. From an order of the surrogate granting the application the executors appeal. The will of decedent is as follows: “In the name of God, amen.

Application of the board of street opening and improvement of the city of Hew York, on behalf of the mayor, aldermen, and commonalty, relative to acquiring title to Forest avenue. From an order confirming the report of the commissioners of estimates and assessments, J. Slater appeals.

<p>1. Res Adjudioata—Record of Former Action—Issues not Decided.</p> <p>The record of an action on a contract showed that, by the contract, defendant was to pay to plaintiff the net profits of a certain business, and that two defenses were interposed: (l) That there was nothing due under the contract; and (2) that the contract was invalid. It also showed that the referee found that there were no profits, and that, therefore, nothing was due, and that judgment was entered, dismissing the complaint, which judgment was affirmed by the supreme court and court of appeals. Held, that the record showed no determination of the question of the validity of the contract.</p> <p>2. Opinions of Judges—Admissibility as Evidence.</p> <p>Where such record was introduced in a subsequent action on the same contract, the opinions of the judges of the supreme court and court of appeals, delivered at the time of the affirmance of the judgment in the former action, were inadmissible to show that such affirmance was an adjudication of the question of the validity of the contract.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Charles Robinson against H. J. Jewett, receiver of the Erie Railway Company. Prom a judgment dismissing the complaint on the merits, plaintiff appeals.</p>

Action by John H. Richards against Samuel H. Day, executor of the will of Elizabeth Davis, deceased. From so much and such part of the judgment as dismissed the counterclaim of defendant, and granted judgment as to such counterclaim in favor of plaintiff, defendant appeals.

Proceeding on the relation of Joseph Cauffman and others to punish John Van Burén and Frank Hopkins for contempt.

Action by Henry M. Peyser and others against Matthew R. Myers and others, executors of John K. Myers, deceased, to set aside an assignment made by Halstead, Haines & Co. as fraudulent, and that judgments obtained by plaintiffs should be paid out of a preference in such assignment to defendants. From a judgment dismissing the complaint as against defendants, plaintiffs appeal.

Action by the American national Bank of Providence against William R. Grace to recover the amount of two promissory notes. From an interlocutory order overruling the demurrer to the complaint, defendant appeals.

Action by Mitchel Valentine against Welhelmine Juch for an accounting of the rents and profits of certain real estate. From an order of the special term denying plaintiff’s motion for the appointment of a receiver, he appeals. ’ Plaintiff claimed to be the owner of the premises under a deed from a referee on a sale on the foreclosure of a mortgage.

Application by John McCrone, an attorney at law, for payment for professional services out of estate of Emma L. Greenhalgh, an infant, in whose behalf the services were rendered. The application was denied, and McCrone appeals.

Action by Aaron Levy against John Beacham. Plaintiff had judgment against defendant, and, the sheriff failing to find property from which to satisfy the same, an order was granted requiring defendant to submit to an examination concerning his property, from which order he appeals.

<p>Appeal from special term.</p> <p>Action by Catherine A. G. Rehfeldt against the city of Brooklyn. From .a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by James A. Fisher against Clarence B. Smith. From a judgment-' for plaintiff, defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Lillie S. Crary against William P. Crary for divorce. Prom a. judgment for plaintiff, defendant appeals.</p>

<p>Appeal from trial term.</p> <p>Action by John Ryan against the H. W. Johns Manufacturing Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Action to Recover Rent—Pleadings.</p> <p>In an action to recover rent, wherein one of the defenses was that of breach of warranty of the condition of the premises, a demurrer on the ground that the warranty was oral, which fact did not appear by the answer, was bad.</p> <p>.2. Same—Deceit.</p> <p>Though the words of such warranty be eliminated, yet it being alleged that plaintiff made certain false representations, known to him to be false, with intent to induce defendants to take the lease, a defense founded on deceit is set forth.</p>

Action by Patrick Malony against Edward Brady for damages resulting from the negligence of defendant in repairing the roof of plaintiff’s building, whereby the goods of plaintiff’s tenants were injured. Plaintiff paid his tenants for the injuries suffered by them, and he now sues defendant for indemnity. From a judgment for plaintiff, defendant appeals.

Action by the United States National Bank against the Homestead Bank. From a judgment of the general term of the city court affirming a judgment in favor of plaintiff, defendant appeals.

Action by Clarence M. Smith against the Manhattan Bail way Company to recover damages for injuries to plaintiff’s person, inflicted by defendant’s servants in an attempt to eject him from the train. Having paid fare to South Eerry, plaintiff boarded defendant’s train at Chatham Square station, by leaping on the rear platform, in violation of a rule of the company, and rode thence to Hanover Square station.

<p>Statute op Frauds—Verbal Guaranty—Original Obligation—Evidence.</p> <p>Defendant was sued on a guaranty of R.’s note for §2,000. Plaintiffs testified that defendant verbally agreed to pay the note if R. did not. Defendant testified that R. promised to pay §2,000 in settlement of his share of a liability of himself, plaintiffs, defendant, and others, if plaintiffs would discount a note for him (R.) for that amount; and that he (defendant) handed the note to plaintiffs, received the proceeds of the discount, and handed the same to R., without guarantying payment of the note. R., called by plaintiffs, testified that the parties were liable for a, fraudulent issue of stock, and, to compromise an action therefor to which he (R.) was not party, agreed to make payments through him in order to hide their participancy in the fraud, and that the §2,000 was plaintiffs’ share of the liability. Meld, that the evidence justified an instruction that defendant was not liable if he merely verbally guarantied payment of the note; but otherwise, if the note was really made for his accommodation, through R., as a screen.</p>

Action by Nellie MacDonald against Frederick F. Kieferdorf and others. On the 1st day of February, 1892, the plaintiff and appellant procured a warrant of attachment against the property of Frederick F. Kieferdorf in this action, which was subsequently levied upon the property of the defendant.

<p>■Conflict of Laws—Usury.</p> <p>Notes executed, delivered, and made payable in New York, by a resident thereof, for the price of goods purchased from a foreign corporation, through its local agent in New York, are governed by the usury laws of New York.</p>

<p>Proceeding under Laws 1891, c. 215, to impose a tax of 1 percent, on property bequeathed by Joseph A. Dreyfous, deceased, to his wife. The act was approved April 20, 1891, after 8 o’clock A. M„ and decedent died the same day, but before 8 o’clock a. m.</p>

<p>1. Fellow Sebvants—Conductor and Brakeman—Vice Principal.</p> <p>Where the determination of the sufficiency of appliances for holding defendant’s, railroad train in descending a grade was left to its conductor, the decision of the conductor was the decision of defendant; and defendant was liable for the death of a brakeman on the train, caused by the insufficiency of the appliances used.</p> <p>2. Same—Rules op Railroad Company.</p> <p>A brakeman who has been in the employ of a railroad only three months cannot be held to have had knowledge of a standing order in regard to the management of the train, and therefore to have, by continuing in the employment, assumed the risks attendant thereon; it appearing only that the order, which was not in the-book of rules, had been posted some time before, and it not being shown whether-it had been torn- down or was still up during his employment.</p> <p>16 N. Y. Supp. 840, affirmed, by divided court. ■</p>

Application by the city of Buffalo to acquire lands for park purposes, pursuant to Laws 1887, c. 557. From an order taking certain lands in West Seneca, owned by Miles Wasson, he appeals.

Action by Lewis Seasongood and others against the New York Elevated Railroad Company and another, and seven other cases, to recover damages and for an injunction. After the eases had appeared upon the calendar of the court they were referred to Mr. William H. Willis, referee, to hear and determine. Judgments were entered on the report of the referee against the defendants, from which judgments defendants appealed to the general term of this court.

<p>Appeal from special term.</p> <p>Action by Justus Hoerle against Joseph McIthargy. From a judgment in favor of a receiver appointed, in the action, the McFarlan Carriage Company, a creditor, appeals.</p>

<p>Appeal from special term.</p> <p>Action by Julius Lehman, receiver, etc., against George F. Bentley. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from jury term.</p> <p>Action by Mary Collins against the Long Island Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

Action by Henry Iden against Isaac Sommers. From a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Factors—Accounting—Compromise op Claims for Duties.</p> <p>An action was brought by a foreign consignor against a domestic consignee for an accounting. Defendant claimed credit for a sum paid the government in compromise of a suit to recover for undervaluations of import duties. Meld, in the absence of any evidence of authority from plaintiff to defendant to make the compromise on joint account, that the referee erred in charging plaintiff with any part thereof. Monnet v. Merz, 27 N. E. Rep. 827,127 N. Y. 153, followed.</p>

Exceptions from jury term. Action by Charles H. Smith against Matilda F. Lockwood and another, executors of John Lockwood, deceased. A verdict for plaintiff was directed by the court, and defendants move for a new trial on exceptions ordered to be heard in the first instance at general term.

Action by George K. Burrows against the Atlas Steamship Company, Limited. From a j udgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals.

Action by William E. Coffin and others against the president and directors of the Grand Bapids Hydraulic Company, (three cases,) the facts in each of which are similar, except as to date of the obligation, time when due, amount, and parties plaintiff, so that the questions involved in the three cases may be disposed of by the decision of one.

Action by Ella M. Seybold against William Bostleman. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by the mayor, aldermen, and commonalty of the city of Yew York against Thomas S. Constantine and Andrew J. Constantine. From a judgment for plaintiffs, and from an order denying a motion-for a new trial, defendant Andrew J. Co-stantine appeals.

<p>Appeal from special term.</p> <p>Action by William A. Haggerty against James J. Phelan. From an order allowing service of an amended answer, plaintiff appeals.</p>

<p>Appeal from special term.</p> <p>Action by Victoria P. Watson and others against Mary L. Pinckney and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by the Millstone Granite Company against James F. Dolan. From a judgment for plaintiff, defendant appeals.</p>

Action by the Shaarai Berocho, an incorporated religious society, against the mayor, aldermen, and commonalty of New York, to have certain taxes declared illegal, and to enjoin their collection. Judgment for plaintiff. Defendant appeals. The plaintiff is a religious society, incorporated under the laws of the state of New York.

Action by Louise Muller against the Orden Germania on a certificate of membership issued to her sister. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Clark R. Griggs against Melville C. Day and Daniel E. Garrison, as surviving executors of Cornelius K. Garrison, deceased, for an accounting in respect to matters relating to the construction of a railroad for the Wheeling & Lake Erie Railroad Company. From an order of the special term, sustaining the clerk’s refusal to tax certain costs, plaintiff appeals.

Action by John H. F. Uhlenhaut against the Manhattan Bailway Company and the Hew York Elevated Bail way Company and Helen K. Sumner, as sole-acting trustee under the will of Adams C. Sumner, deceased, to enjoin the operation of an elevated railway in front of plaintiff’s premises, Ho. 197 Pearl street. Judgment for plaintiff. Defendants appeal.

Action by the United States Trust Company of 27ew York, trustee, etc., .against Miles M. O’Brien, to recover damages for a breach of the following ■covenant contained in the lease of the premises: “That the defendant will, at any reasonable hour in the daytime, permit the lessor or his agent to show the premises to such persons as he desires, for the purpose of selling or leasing the same, and will permit the usual notice of «To-Let’ to be posted on the premises, there to…

Action by Peter Stastney against the Second Avenue Railroad Company t» recover damages for personal injuries. From a judgment for the plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Augustus E. Dickinson against Edmund E. Price for a breach of contract. The trial was before the court and a jury, and plaintiff was non-suited as to the cause of action set up in the complaint, and judgment ordered for defendant for $37.30 on admitted counterclaims. From the judgment, and from an order denying a motion for a new trial, plaintiff appeals.

<p>Appeal from judgment on report of referee.</p> <p>Ejectment by Charles Carter against Nicholas'Meisch. From a judgment for plaintiff, entered on the report of a referee, defendant appeals.</p>

Application by Emmet Meyers for a mandamus requiring the Masonic Guild' & Mutual Benefit Association to make an assessment on its members to pay a judgment against it in favor of relator. The trial court granted the man-damns, and the general term affirmed such action. The court of appeals, however, reversed the judgments of the general and trial terms, and the application was denied, with costs in all courts.

<p>Railroad Aid Bonds—Payment—Rights op Town.</p> <p>Laws 1869, c. 907, provides that all taxes, except school and road, assessed on and paid by any railroad in a town which has issued bonds in aid of such railroad, must be applied by the county treasurer to the purchase of the bonds, if they can be purchased at or below par, and, if not, must be held, with the accumulated interest, as a sinking fund for the redemption and payment of such bonds. Held that, where"a county treasurer failed to apply such taxes to either the purchase or payment of railroad aid bonds, a town which had paid its bonds was entitled to be subrogated to the rights of the original owners, and to have the bonds paid from the fund in the hands of the-county treasurer.</p>

Action by Samuel I. Knight against Henry S. Vanderbilt for deceit. From an order denying a motion to discharge him from custody, under Code Civil Proc. § 572, defendant appeals. The verdict was rendered on January 21, 1892. The order of arrest was-obtained January 28, 1892, and was served February 3,1892. This motion to vacate was made two days after the order of arrest was served, and judgment was entered February 8, 1892.

Action by Francis C. Reed, as trustee, etc., of Cynthia Bunce, against the Metropolitan Elevated Railroad Company and another for an injunction. From a judgment for plaintiff, defendants appeal.

Petition by Jane Eliza Davis, as administatrix with the will annexed of -Cornelia Post, deceased, to compel an accounting by Henry A. V. Post, as administrator of Edwin Post, deceased, who in his lifetime had been administrator of Cornelia Post, deceased. From an order denying a motion to allow'petitioner to file her requests to find, and the rulings of the referee thereon, nunc pro tune, in the surrogate’s court, said petitioner, Jane Eliza Davis, appeals.

New York county. Action by Frederick M. Hill, commenced by attachment, against the Knickerbocker Electric Light & Power Company, a corporation organized under the laws of West Virginia, to recover for personal services. From an order denying a motion to vacate the attachment defendant appeals.

Action by Harry W. Link, by his guardian, against Jay W. Sheldon and another for malpractice. From judgment entered on a verdict in favor of plaintiff, and from an order denying a motion made on the minutes fora new trial, defendants appeal. The evidence showed that on July 25, 1890, plaintiff, then being about 12 years old, was playing in the hay loft of a barn, and fell to the barn floor, a. distance of about 11 feet; thereby breaking his right arm near the wrist.

Proceeding for the judicial settlement of the account of Franklin A. Williams as surviving executor of the will of Timothy D. Porter, deceased. From a decree of the surrogate’s court in favor of the Second Congregational Society of the town of Coventry, sustaining a legacy given to it by the testator, Franklin A. Williams, as executor and individually, appeals.

• Action by Patrick Aherin against John J. O’Brien for breach of warranty on the sale of a horse. Judgment for plaintiff in the justice court, where the action was brought, was affirmed by the county court, and defendant appeals.

Action by Caroline Leach and another, as executors of Winslow C. Leach, deceased, against John Newell Yining and others. From a judgment dismissing the complaint, and directing judgment in favor of defendant Atwood P. Yining for $303.13, plaintiffs appeal.

Action in justice court by James M. Angelí against Barnet N. Hill. From a judgment of'the county court reversing a judgment of the justice court in favor of plaintiff, plaintiff appeals. •The action was for trespass by defendant’s cattle going upon the plaintiff’s land, and injuring his crops of corn. The plaintiff’s lands were situated in the town of New Berlin, Chenango county.

Action by Theodore F. Butterfield against Henry E. Oppenheimer, George 0. Comstock, and Herbert G. Jones. Verdict and judgment in favor of plaintiff for $813.57. Subsequently plaintiff died, and his executors, Theodore Butterfield and Harriet Butterfield, were substituted. From the judgment and from an order denying a motion for a new trial, made on the minutes, defendants appeal.

Action by Lucinda Woodard against William J. Foster to recover possession of certain real property. From- a judgment for defendant, entered in Cortland county, plaintiff appeals.

<p>Municipal Corporations—Public Improvements—Opening Award.</p> <p>Where one whose land had been taken by commissioners in opening a street failed to file objections to their award within the time fixed by statute, and no sufficient excuse was given for such failure, and the report had been confirmed, and the assessments have been made, the report will not be recommitted for amendment as to such award.</p>

Action by John P. Douglas, as executor of the last will and testament of Harriet Chase, deceased, against George E. Tost and Levi Chase, as administrators, etc., of James Chase, Jr., deceased, and others, for the construction of the will, and for a settlement of plaintiff’s accounts as executor, and for direction as to his duties. From an interlocutory judgment entered upon the decision of special term, defendants Tost and Levi Chase appeal.

Action by Ephraim D. Mowry against the Agricultural Insurance Company, impleaded, to recover the amount of a policy of fire insurance and interest. A judgment in favor of plaintiff was entered in Oswego county, and ■defendant insurance company appeals.

Action by Andrewette la Tourette and Ann la Tourette against Angelina Decker and others to set aside certain deeds as void and for partition of real estate. From a judgment entered in Broome county in favor of plaintiffs, defendant Angelina Decker appeals. Defendant Angeiine Decker claimed title by deed to the premises first mentioned therein. She also claimed to hold a mortgage upon the same.

Action by James Dougherty against the Borne, Watertown & Ogdensburg Bailroad Company. From a judgment entered on a verdict in favor of plaintiff for $4,750, and from an order denying a motion on the minutes for a new trial, defendant appeals. The action is brought to recover damages for personal injuries sustained by tile plaintiff by reason, as he claims, of the negligence of'the defendant.

Action by William Furlong against the Agricultural Insurance Company on a policy of fire insurance. From a judgment entered on a verdict for plainiff, and from an order denying a motion for a ne w trial, defendant appeals.

Action by Alfred Fatman against Solomon J. Fatman, in his own right arid as executor of Joseph Fatman, deceased. From an order denying a motion to vacate or modify an order for the examination of defendant before trial, defendant appeals.

Proceedings by the Church of St. Francis Xavier to set aside the inquisition of the lunacy of Ann Eliza Owens. Motion to confirm the report of the referee appointed to take proof as to the recovery of the lunatic.

<p>1. Gifts Causa Mortis—When Void.</p> <p>Under Laws 1858, c. 314, declaring that every one who, in fraud of the creditors of a decedent, receives, or in any way interferes with, decedent’s property, shall be liable to the executors or administrators for such property or its value, a gift causa mortis of all one’s property is void if the donor has any debts.</p> <p>2. Same—Gift on Condition.</p> <p>To make a gift causa mortis valid, there must be a renunciation by the donor, and an acquisition by the donee, of all interest and title to the property intended to-be given, and such gift is void when accompanied by the condition that part thereof he applied to the payment of the donor’s debts.</p>

Action by Philip Biershenk and another against William E. D. Stokes. A demurrer to a part of defendant’s answer was sustained by the special term of the city court. From an order of the general term of that court reversing the order of the special term, and overruling the demurrer, plaintiffs appeal.

Action by Albert S. Newcombe against Horatio N. Fraser and Benjamin F. Fairchild to recover damages for breach of contract of employment. Plaintiff agreed to introduce and sell defendants’ medical preparation to the trade at $4.70 per day for one year, or on a commission guarantied to equal that sum.

Action by Leopold Adler against the Metropolitan Elevated Bail way Company and others.

Action by Andrew W. Schelling against Cord Bischoff and others to set aside a bill of sale and a confession of judgment. Complaint dismissed, and judg- . ment for defendants. Plaintiff appeals.

Action by Julius Bien and another against Theodore Hellman and others. From an order directing service of a bill of particulars on defendant Hellman, plaintiffs appeal.

Action by the Sixth National Bank of the City of New York against theLorillard Brick Works Company and another. From a judgment for defendants, and from an order denying a motion for a new trial, plaintiff appeals.

Action by William B. Duncan, Jr., against the New York Mutual Insurance Company, to set aside the cancellation of a policy of marine insurance. From a judgment for plaintiff, defendant appeals.

<p>1. Elevated Railroads—Benefit to Property—Proximity of Station.</p> <p>The question whether or not a property owner is benefited by having a large number of people pass bis premises daily, on account of the proximity of an elevated railroad station, is one of fact, and a refusal to find that the property is benefited thereby will not be disturbed.</p> <p>2. Same—Double Frontage—Separating Wall.</p> <p>Where plaintiff’s premises fronted both on Park Row and Duane streets, which were intersecting streets, the court properly refused to charge that the premises-consisted of two separate buildings, in the absence of evidence that there was a. separating wall between them without openings, cutting off the advantages of light and air derived by the one from the other.</p> <p>3. Same—Rental Value—Evidence.</p> <p>The court properly allowed plaintiff to prove a decrease in the rent of adjacent-property, in the absence of a special objection on the ground that the rent was s, matter of bargaining between persons other than the parties to the action. i. Same—Dissimilarity of Structures.</p> <p>The fact that such property was hotel property, dissimilar in structure, use, and! occupation from plaintiff’s property, was no ground of objection to the evidence..</p> <p>5. Same—Irresponsive Answers.</p> <p>Plaintiff’s witness testified in chief that plaintiff’s building was now worth from-860,000 to 865,000, and on cross-examination that 825,000 damages had been done it by the erection of defendants’ road. On redirect examination, the witness was-asked how much he allowed for damages from the road, to which he answered that the property would sell' for §100,000 if the road was not there. Held, that the court properly refused to strike out the answer as irresponsive, and as relating to new matter.</p> <p>6. Same—Credibility of Witness.</p> <p>The increase in the witness’ estimate of the damage done may have afforded matter for comment on his testimony, but did not render it incompetent.</p> <p>7. Same—Reduction of Rent.</p> <p>Plaintiff testified that he reduced the rent on an outstanding lease of the premises, because he could not collect the full amount thereof from the tenant. Held, that the court was justified in holding that the reduction was due to business expediency, and was not negligent or without cause.</p>

Exceptions from jury term. Action by Leroy M. Lyon against Halsey Fitch and Herbert 0. Whitney on a promissory note. The trial court dismissed the complaint, and directed the exceptions to be heard in the first instance at the general term. Plaintiff moves for a new trial.

<p>Appeal from judgment on report of referee.</p> <p>Action by the Swan Lamp Manufacturing Company against the Brush-Swan Electric Light Company of New England to recover the price of goods sold. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from jury term.</p> <p>Action of ejectment by Mary 2T. Townshend against Ellen L. Thomson and others, defendants. From a judgment for defendants, plaintiff appeals.</p>

Action by the Brooklyn Heights Railroad Company to restrain the city of .Brooklyn from preventing plaintiff from laying certain railroad tracks. From a judgment for plaintiff, defendant appeals.

Action by Adolph Schwartz and another against Timothy B. Linington and. Joseph Irwin, as assignee for the benefit of creditors of Linington, to set aside the assignment. From an order vacating an order of reference, plaintiffs appeal.

Action by Henry Hentz and another against Elizabeth F. Miner. From a judgment for plaintiffs, and from an order denying a motion for a new trial, defendant appeals.

Action by the International Tile & Trim Company against Henry Ahlers for goods sold and delivered. From a judgment for plaintiff, defendant appeals.

Case submitted on agreed statement. Action by the board of charities and corrections of Kings county against the board of supervisors of Queens county to recover for the support of prisoners convicted in Queens county and kept in the Kings county jail. Judgment for defendant.

Certiorari, on the relation of Richard McGrath, to review a decision of the board of excise commissioners of the city of Yonkers revoking relator’s tavern license for failing to keep his barroom closed on Sunday. Relator had been previously indicted “for not closing and keeping closed his licensed inn, tavern, or hotel.” He demurred to the indictment, and the demurrer was sustained.

<p>1. Action on Contract—Breach—Tender.</p> <p>Defendant purchased certain land at foreclosure sale, and agreed to reconvey it to the mortgagor on payment of a specified sum and of certain debts due defendant. The mortgagor paid S900 under the agreement, and then died. His administrator offered to paya certain amount as the balance due, but, being unable to agree as to the amount due, defendant sold the property. Held, in an action by the administrator to recover for the breach, that defendant having by the sale put it out of his power to convey, a tender was not necessary on the part of plaintiff to support the action.</p> <p>3. Mortgages—Accounting.</p> <p>The transaction in question being in effect a mortgage, there should have been an accounting, crediting plaintiff with the $900, and charging him with the use and occupation of the premises by his intestate’s family.</p>

<p>Replevin—Title—Weight op Evidence.</p> <p>In replevin involving the title to a chattel, in which the controversy is a mere question of fact, a finding of the justice in accordance with the probabilities of the case will not be disturbed.</p>

<p>1. Negotiable Instruments—Notice of Equities—Director of Bank.</p> <p>The fact that a director in a bank discounting a note is also a director in a corporation, payee of the note, is not sufficient to charge the discounting bank with notice of equities between the maker and payee.</p> <p>2. Same—Official Signature—Individual Liability.</p> <p>A note was executed in the following form: “Three months after date we promise to pay to the order of O. & 0. Ice Co. $7,500, at M. Bank; value received. [Signed] E. H. Close, Treas. John Clark, Prest. ” The words “Ridgewood Ice Company” were printed across the end of the note. Held, that the note was the personal and individual obligation of the makers.</p>

<p>Appeal from circuit court, Westchester county.</p> <p>Action by Celia Stillwell against Hannah E. Archer and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Egbert Uchtman against Anne M. Tonyes and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Suffolk county court.</p> <p>Action by William Hulse against Samuel B. Hicoll. From a judgment for plaintiff, defendant appeals.</p>

Action by James Sweeney against David R. Paige and John J. Ridgway, composing the firm of David R. Paige & Co., to recover damages for personal injuries. From a judgment of nonsuit, plaintiff appeals.

<p>Appeal from Suffolk county court.</p> <p>Action by Evelyn Jackson and Charles B. Wiggins, overseers of the poor of the town of Southold, against Herman Sandman, Manuel Claudio, Peter De Grief, and Clement McMillan, four separate cases, to recover penalties for illegal sales of intoxicating liquors. The evidence of the witness Young for plaintiffs, referred to in the opinion, was that he was a member of the executive committee of the Law and Order League, and disburser of its funds; that he, together with another person in behalf of the league, had an interview with plaintiffs, and stated to them that evidence had been secured against defendant Claudio for violation of the excise law; that plaintiffs (overseers) replied that they would require affidavits of the witnesses who secured the evidence, before commencing a prosecution; that an agreement was had that one of the plaintiffs, together with witness and two others, should go to see the attorney for plaintiffs, and obtain the affidavits, which was done; and that plaintiff Jackson then declared that he was satisfied that an offense had been committed, and requested the attorney to bring the action. From judgments of the county court reversing the judgments of a justice in the cases of Sandman, De Grief, and McMillan, plaintiffs appeal. Affirmed. From a judgment of the same court affirming in part a judgment of the justice, defendant Claudio appeals.</p>

Action by Evelyn T. Provost against William T. Provost for an absolute divorce. J udgment for plaintiff. From an order denying a motion to vacate and set aside the judgment, defendant appeals.

Adams, commissioner of the department of city works in the city of Brooklyn, to restore him as a laborer in said department. From ana order granting a writ of peremptory mandamus, defendant appeals.

Action by G. Fuchs against J. A. Morris for money due for an orchestrion sold by plaintiff to defendant, and for work performed in setting it up in defendant’s clubhouse. Defendant set up four counterclaims, and on motion was required to furnish a bill of particulars of the fourth counterclaim, which was a claim alleged to have been assigned to defendant by one Henderson, an attorney at law, for services said to have been performed for plaintiff by him and one Treloar.

In the matter of the Metropolitan Elevated Railway Company relative to acquiring title to certain real estate in New York city. From an order taxing certain costs, the railway company appeals.

Action by George-H. Adams and another, as executors of Alice 0. Barlow, deceased, against Stephen H. Olin and another, as executors of Samuel L, M. Barlow, deceased. From a jndgfnent for plaintiffs entered on a reference defendants appeal.

Action by John Hopkins and others against Anna Frey, impleaded with others. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal.

Action by Charles Myers against the mayor, aldermen, and commonalty of the city of Hew York to recover compensation for his services as inspector •of regulating and grading. From a judgment dismissing his complaint, plaintiff appeals.

Application of George Townshend and others, stockholders in the United •States Cremation Company, Limited, for an inquiry into the validity of an ■election of directors and an order for a new election, under Laws 1890, c. 563, § 15, which provides that the supreme court shall, “upon the application ■of any person or corporation aggrieved by or complaining of any election of any corporation, * * * inquire into the matters or causes of complaint, and establish the election, or…

Action by William Engelsdorff against Henry B. Sire for damages for a failure to give plaintiff possession of certain leased premises. Verdict for plaintiff for $750. From an order denying a new trial, and from a judgment entered on the verdict, defendant appeals.

Exceptions from circuit court, New York county. Action by Eugene Kelly against Charles H. Noxon and others for rent. Verdict for plaintiff. Defendants move for new trial on exceptions directed to be heard in the first instance at general term.

<p>1. Attachment—Breach of Warranty—Set-Off.</p> <p>An attachment cannot he granted in an action based on breach of warranty without an averment in the affidavit that a cause of action existed over and above all counterclaims.</p> <p>■2. Same—Averments "on Information and Belief.</p> <p>Averments on information and belief, showing no personal knowledge as to the making of the warranty, breach of which is claimed, furnish no basis for an attachment.</p> <p>;3. Same—Fraud—Sufficiency of Averments.</p> <p>An attachment for fraud in making the contract for sale of certain sewing machines, the price paid for which is sought to be recovered, should not be granted on allegations of defendant’s affidavit that the machines could perform satisfactory work for the purposes of plaintifl’s business, their failure to do so, the allowance of many years for furnishing better machines on the representations of defendant that the defects could be cured, the final failure of the new machines, and the conclusion of affiant that defendant must have made his representations with intent to deceive plaintiff, knowing them to be false, relying probably on his belief that experiments would enable him to make good his representations.</p>

Petitions by Hugh M. Stanfield and Henry E. Stanfield, respectively, as beneficiaries under the will of Mark M. Stanfield, deceased, to compel the payment of interest alleged to be due them. From a judgment directing the payment of interest at the rate of 3 per cent., both the petitioners and the Knickerbocker Trust Company, the executor, appeal.

Action by Sarah McGrath against Sarah F. Walker to recover damages for personal injuries sustained by falling into a sidewalk cellar entrance. The jury were directed to visit the scene of the accident, and while there a crowd gathered, some of whom made remarks in the presence of the jury about the case. From a judgment for plaintiff, and from an order denying a motion to set aside the verdict, defendant appeals.

Action by-William A. Harding, as administrator of Medad W. Stone, deceased, originally brought against Philip J. Goodhart & Co., to recover a sum realized by defendants from a sale of certain securities placed in their hands by said decedent. By consent Walter H. Field was substituted as defendant, and answered.

<p>1. Corporations—Resolutions—Pledge oe Property by Officers.</p> <p>The directors of a corporation passed a resolution depositing notes payable to the corporation with the cashier of a bank, subject to the joint order of the president and secretary of the corporation; and the cashier by his written receipt recognized the terms of the resolution. Held that, as the president of the corporation has no power to repeal the resolutions of its hoard of directors, an order, subsequently executed by the president alone, pledging the notes to the hank as collateral, could not have such effect, and could not give the bank title to support an</p> <p>' action by it against the maker.</p> <p>2. Same.</p> <p>Nor is such resolution complied with so as to constitute a pledge of the notes to the bank by a letter to the cashier, signed by both the president and secretary of the corporation, notifying him that the notes have been pledged to third persons as collateral and declaring, “this pledge is, however, subordinate to the rights of the” bank, it appearing that such resolution in favor of the bank related to the intended giving of an order" signed by the president and secretary, which order was never given; and, further, that at the time the letter was written it was well understood that the bank had no right in the notes.</p> <p>3. Same—Rights of Pledgee.</p> <p>Nor can the fact that the president requested the hank to bring suit on the notes,. and that he and the general manager of the corporation intended to give the bank an order signed by them, give the bank any title to the notes which would support an action thereon by it, if such order was not in fact given.</p>

Action by Maria Anna Vogel against Maria Lucia Lehritter, Margaretha Heer, Sebastian Heer, Otto A. Vogel, and Charles Lehritter for partition. An interlocutory judgment was entered on the report of a referee, and defendant Charles Lehritter moves for a new trial upon exceptions.

Action by Max Danziger against Charles Falk en berg and Jacob Lederer for rent. From a judgment entered on a verdict for defendants, and from an order denying a motion for a new trial, plaintiff appeals.

Action by Patrick S. Cassidy against the Brooklyn Daily Eagle for libel. Prom a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Jacob Tome against Charles A. Gerlach on a note. From a judgment for plaintiff, entered on a verdict directed by the court, and from an order denying a motion for a new trial, defendant appeals.

<p>Action by Julius F. Chesebrough against Daniel D. Conover.</p>

<p>Action by Sarah E. Mellen against William 0. Banning, as executor, etc., and others.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Joseph Strouse and another against the New York Elevated Railway Company and another. From a judgment for plaintiffs, defendants appeal.</p>

New York county. Action by the Sixth Avenue Railroad Company against the Metropolitan Elevated Railway Company and the Manhattan Railway Company to restrain the maintenance and operation of defendants’ railroad on Sixth avenue, New York city, in front of plaintiff’s property, and for damages.

Action by the Roosevelt Hospital against the New York Elevated Railroad Company and the Manhattan Railway Company to enjoin defendants from maintaining or using an elevated railroad structure in front of or adjacent to plaintiff’s premises, No. 243 Bowery, in the city of New York, and to require them to remove the same, until they shall have made proper and adequate compensation for the property and interests in the street on which plaintiff’s premises abut, and in which…

<p>Appeal from circuit court, Richmond county.</p> <p>Action by Stephen D. Simonson, as executor of John W. Simonson, against the Hew York City Insurance Company, for salary of plaintiff’s testator as president of defendant.</p>

<p>Motion by defendant Sullivan for reargument, or for leave to appeal to the court of appeals.</p>

<p>Action by James C. Birge against the Berlin Iron Bridge Company.</p>

<p>Motion by defendants (respondents) for reargument. Denied.</p>

<p>Action by James C. Birge against the Berlin Iron Bridge Company and others.</p>

<p>Action by James M. Smith, as executor of John Giles, deceased, against Frank Pelott.</p>

<p>Action by Daniel Engel, administrator of Frederica Engel, deceased, against-the Eureka Club.</p>

<p>Motion by plaintiff (appellant) for leave to appeal to the court of appeals.</p>

<p>Motion by plaintiffs for reargument or for leave to appeal to the court of appeals.</p>

<p>Motion by defendants (appellants) for reargument. Denied.</p>

Action by Augusta L. Jones against the New York Elevated Railroad Company and the Manhattan Railway Company to restrain defendants from maintaining their elevated railway in front of plaintiff’s premises, and for past damages.

<p>Appeal from first district court.</p> <p>Action by Jabez Burns against William J. Swan.</p>

<p>Motion by defendants (appellants) for reargument. Denied.</p> <p>For decision on appeal, see 16 N. Y. Supp. 524.</p>

<p>Motion by defendant for reargument. Denied.</p>

<p>Motion by relator (appellant) for reargument. Denied.</p>

<p>Action by Mary Cluff against Henry S. Day and John Thompson.</p>

<p>Appeal from special term.</p> <p>Action by Florence V. Haigh and another against Christine H. Crocker and others.</p>

<p>Appeal from special term.</p> <p>Action by Paul Zunz against William W. Heroy. From a judgment for plaintiff, defendant appeals. Plaintiff moves to dismiss the appeal.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by John M. Otter against the Metropolitan Elevated Railway Company and the Manhattan Railway Company for damages and an injunction.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Lewis Seasongood and others against the Hew York Elevated Railroad Company and another.</p>

<p>Appeal from special term.</p> <p>Action by Eliza L. Hirshberger against the Manhattan Railway Company and another.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Samuel Weiss and others against the Metropolitan Elevated Railway Company and another.</p>

<p>Exceptions from jury term.</p> <p>Action by Eliza W. White and Caroline White against Edward M. Benjamin on a note.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Eliza A. Burggraf and another against the Metropolitan Elevated Railway Company and another.</p>

<p>Appeal from special term.</p> <p>Action by Clark R. Griggs against Melville C. Day and another, executors,, etc. From an order denying a motion to expunge certain matter from the judgment roll, defendants appeal.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Peter Mager against the Metropolitan Elevated Railway Company and another.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Mary L. Jones and another against the Metropolitan Elevated Railway Company and another.</p>

<p>Appeal from jury term.</p> <p>Action by Frank Wennemer against Philip Braender.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Gustav Zimmer and another against the Metropolitan Elevated Railway Company and another.</p>

Application by Philip Krieger for mandamus to compel the board of excise, of the city of Brooklyn to grant him a license to sell intoxicating liquors.

<p>Appeal from judgment on report of referee.</p> <p>Action by Rosa Scheier against the Metropolitan Elevated Railway Company and another.</p>